, NAIROBI, Kenya, Jul 22 – It appears that the Wiper Democratic Movement is not out of the woods yet after former politician Agnes Ndetei filed a Notice of Appeal to challenge the High Court ruling that allowed the party to nominate Mutula Kilonzo Jr for the Makueni Senate seat by-election.
Ndetei’s Notice of Appeal was informed by a legal opinion that faults the ruling which “violated Section 13(2) of the Election Act.”
“Agnes Mutindi Ndetei being dissatisfied with the decision of the Honourable Lady Justice Ngugi, Honourable Justice Mwongo and Honourable Justice Korir given at Nairobi on July 19 intends to appeal to the Court of Appeal against such part of the said decision as decides that Wiper Democratic Movement Party do nominate a candidate for the Makueni County senatorial by-election scheduled for the July 26 and present its nominated candidate to the Makueni County Returning Officer at Wote on the on July 20 at 8am,” the notice reads.
“Section 13(2) of the Elections Act states a political party shall not change the candidate nominated after the nomination of that person has been received by the commission. The High Court cannot in its judgment ignore this express and explicit provision of the law,” the opinion reads.
The opinion goes further in faulting the three judge bench for allowing Wiper a second bite of the cherry for the reason that it goes against the precedent set by previous rulings in similar cases:
“The (Jubilee) coalition was barred from replacing its candidate for the Kajiado County gubernatorial race following the initial candidate’s disqualification by virtue of not meeting the education level requirements. This decision was reached despite Jubilee having taken steps to check if he was qualified.”
Whether or not Wiper was aware that their initial nominee, Kethi Kilonzo, was not a registered voter, the party argues, should have factored into the equation, “The High Court misdirected itself in finding that Wiper could not be punished by being barred from the race since it had a legitimate expectation of fielding a candidate. The court asked itself a question that was not subject to the decision that was under Review; “did Wiper know or have reason to believe that Ms Kilonzo was a registered voter?”
Wiper’s legal representative, Tom Kajwang, in turn accused Jubilee of being partial in its reading of Section 13 (2) of the Election Act which continues to state:
“Provided that in the event of the death, resignation or incapacity of the nominated candidate or of the violation of the electoral code of conduct by the nominated candidate, the political party may after notifying the candidate that the party seeks to substitute, where applicable, substitute its candidate before the date of presentation of nomination papers to the commission.”
Despite Kajwang’s rebuttal,the ruling appeared to have come as a surprise to many and not least of all Wiper, which seemed unprepared for the verdict that fell in its favour and pleaded with the court for an extended timeline within which to find a replacement for Kethi.