21 March 2018

Kenya: Supreme Court Hears Case on Anne Waiguru Election Petition

Kirinyaga governor Anne Waiguru has asked the Supreme Court to declare that the High Court lacks jurisdiction to hear and determine Narc-Kenya leader Martha Karua's case challenging her victory.

Waiguru moved to the Supreme Court after an appellate court ordered a petition against her be heard afresh.

SIX MONTHS

During the hearing, Waiguru told five Supreme Court judges that High Court run out of its jurisdiction after the lapse of the six months period set out in the constitution for courts to resolve election cases.

She said Ms Karua's petition filed on September 25 last year expired on March 4.

Through lawyer Paul Nyamodi, she argued it would be illegal and unconstitutional for courts to bypass that constitutional strict timeline to hear and determine election cases.

Mr Nyamodi told the judges that Lady Justice Lucy Gitari of Kerugoya High Court has opened the case for fresh hearing in accordance to the Appeal Court directive which nullified her previous decision to strike out the case.

He faulted appeals court judges Mohamed Warsame, Daniel Musinga and Otieno Odek of "recklessly" placing Justice Gitari in an awkward situation by directing her to hear the case afresh despite being robbed of her jurisdiction to hear it.

"The High Court is not going to exercise its original jurisdiction and this is the forum where such error of law is corrected," said Mr Nyamodi.

Ms Waiguru stated that the appeal court judges ought to had bear in mind the issue of jurisdiction in their directive to Justice Gitari to conduct the case afresh beyond the six months period.

She asked the Supreme Court judges to exercise their discretions by correcting legal errors committed by the Appeal Court and as well arrest any constitutional mistake that Justice Gitari is bound to commit in her handling of the case

Lawyer Joe Kathungu of the Independent Electoral and Boundaries Commission (IEBC) supported the application.

The Kirinyaga Governor told the Supreme Court that it would a great embarrassment to the country's judicial system and failure to uphold the rule of law and the proper administration of justice, should Justice Gitari proceed to hear and determine the case.

Ms Karua who appeared alongside her lawyer Gitobu Imanyara opposed the application stating that her case was not fully heard and determine at the High Court.

She indicated that Justice Gitari struck out her petition on technicality which she successfully appealed and would be injustice, if she is denied a second chance to prosecute her case against Ms Waiguru's election.

Ms Karua told the Supreme Court that whereas the constitution has expressing stated the period for courts to hear and determine election cases, it is silent on cases, where courts terminate matters on technicality.

She indicated that the six months timeline stated under section 75 of the Elections Act only apply to matters that have been heard by High Courts adding that it does not apply to those cases that were never heard.

"This is a matter arising out of appeal and this petition, we construed it that the right to appeal is rendered nugatory. It manifested from errors coming from the superior court. It amounts to denying innocent litigant from seeking justice," added Ms Karua.

On his part, Mr Imanyara told the Supreme Court judges that Ms Waiguru's application before them was not filed in good faith and her sole intention is to seek them stay her incumbency.

He said Ms Karua's case was not heard and determined at the High Court within the six month period because it was struck out on technicality until it was reinstated at the appeal stage.

He submitted that the fresh hearing of her election case emanated out of her decision to exercise right to appeal against Justice Gitari's decision to struck out the case and that she would suffer injustice, if denied to prosecute her case afresh as ordered by appeal court.

The Supreme Court judges are set to fix a date they will deliver their ruling.

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