Now that they have assumed jurisdiction, we must formulate rules in which persons willing to appeal to the Supreme Court can be bound by those rules,” he explained.
He gave the example of the Mary Wambui, Othaya parliamentary election petition as a case where, in his opinion, rules governing the filing of an election appeal before the Supreme Court, would have guarded against abuse of the judicial process.
“She went before the Court of Appeal and applied for a stay when the decision of the Court of Appeal went against her and at the same time simultaneously, she applied for stay at the Supreme Court. And when the date for hearing was fixed before the Supreme Court, she went before the Court of Appeal and withdrew the application for stay and then proceeded to the Supreme Court which granted her stay,” he narrated.
He said it was also necessary for the Elections Act to be aligned to the Constitution so election petitions would be determined on merit and not technicalities.
Giving another example of the election petition challenging Mombasa Governor Ali Hassan Joho’s academic qualifications, Kimaru said rules governing interlocutory appeals in election petitions were also necessary to avoid chaos.
“It is a case which paints everybody in the judicial system in bad light. An election petition is filed, it is heard halfway, an interlocutory appeal is filed, a stay is granted by the Court of Appeal, and then the stay is dismissed after it has been heard. Meanwhile it is sent back to the High Court, the High Court hears the election petition and dismisses it, and then the actual appeal is heard, it is dismissed, and then it goes to the Supreme Court which allows the interlocutory appeal. Maybe I’m stupid but it is very untidy,” he said.
The subject of political party primaries dispute resolution also came up for discussion during the launch of the From Pillar to Post: Transforming the Election Agenda in Kenya report, with a recommendation that they be determined by the Judiciary and not the IEBC as is currently the case.
Whatever the case, both Kimaru and Mahiri-Zaja were in agreement that seven days is not sufficient to determine 200 disputes as was the case prior to the last general election.
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