Sam Kiplagat
12 November 2009
Nairobi — It was the first election petition to be filed immediately after the hotly contested and disputed 2007 General Election but its conclusion is not in sight.
But two years down the line, the petition by Mr John Koyi Waluke is still on its first stages, with the man whose election is being challenged, Foreign Affairs minister Moses Wetangula, trying every possible means to see that it is dismissed.
And Thursday, during the hearing of an appeal filed by Mr Wetangula, the minister made a new application seeking to be allowed to give more evidence in appeal.
According to him, the evidence was very crucial to his case such that he was willing to abandon the appeal for the sake of the application. The highest court in the land heard him and the matter was adjourned to another date when he would apply to be allowed to adduce the evidence.
Judges Erastus Githinji, Alnashir Visram and Joseph Nyamu were also in agreement that Mr Waluke, who stated that he would be opposing the inclusion of the new evidence, needed time to prepare his reply.
Through lawyer A B Shah, Mr Wetangula wants to be allowed to table a ruling by a judge of the High Court who found out that a process server, who tried serving the minister with the petition papers in January last year, had not been licenced then.
In the ruling, Justice Roselyn Wendoh dismissed another election petition saying the process server, Thomas W O Nduku, was not licenced. It is the same process server who tried serving Mr Wetangula last year in vain.
And after failing to effect the service, Mr Waluke went back to court and successfully argued to be allowed to serve Mr Wetangula through the press.
Mr Waluke jumped the first hurdle early last year when an application filed by Mr Wetangula, seeking the dismissal of the petition, was struck out by Lady Justice Wanjiru Karanja.
And after the dismissing the application and ordering that the case proceeds to full hearing, she was transferred from Bungoma stalling the petition for close to five months.
Mr Waluke thereafter wrote to the Chief Justice protesting the delay and Justice Msagha Mbogholi was gazetted to hear the petition in Bungoma but he immediately disqualified himself citing personal reasons.
Meanwhile, Mr Wetangula was unsatisfied by Justice Karanja's ruling and moved to the Appellate Court. The Court of Appeal dismissed the application saying it was incompetent. He was unsatisfied and moved back to the court asking to be allowed to file an amended appeal.
But before the appeal was heard, Parliament made an amendment sending away the defunct Electoral Commission of Kenya (ECK).
After the new electoral body was enacted, Mr Waluke asked the court hear the main petition but there was no judge to hear the case as no one had been gazetted to hear the petition in Bungoma after Justice Mbogholi disqualified himself.
The petitioner was thereafter forced to write again to Mr Justice Evan Gicheru and after some time, Justice Fred Ochieng was gazetted to hear the petition. But when the Judge was readying himself to hear the petition, he was transferred to Nairobi stalling the petition yet again.
Lady Justice Florence Muchemi was later posted to Bungoma and was gazetted to hear the petition but Mr Wetangula was at it again after he filed an application seeking for the dismissal of the petition saying the Interim Independent Electoral Commission (IIEC) had no mandate to take over the petition but it was dismissed and a hearing date set.
Mr Wetangula further filed another application before Lady Justice Muchemi saying the process server was not an authorised person since he did not have a valid licence.
The ruling is slated for November 18.
It is a similar application that Justice Shah would be arguing at the Court of Appeal when the case comes up for hearing. Mr Waluke through his lawyer Alex Masika said he would be opposing the application
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