Kenya: IEBC Urges High Court to Reconsider Decision to Halt Ballot Paper Printing in Mombasa Race

Mombasa — The Independent Electoral and Boundaries Commission (IEBC) Tuesday told the High Court of its desire to seek a stay of the order barring it from printing ballot papers related to Mombasa County Governor seat aspirants.

Through lawyers Edwin Mukele and Moses Kipkogei, IEBC told Justices Olga Sewe, Ann Onginjo and Erastus Githinji that it is grappling with logistic challenges because of the decision to stop it from printing the ballot papers.

On Monday, the three-judge bench issued a conservatory order of injunction restraining the IEBC from printing ballot papers in respect of Mombasa County gubernatorial candidates pending hearing and determination of Sonko's application.

The court also restrained the Wiper Party from nominating any other candidate for the position of Governor Mombasa County pending hearing and determination of the application.

The lawyers told the three-judge bench that a Greece company contracted to print the ballot papers has communicated to the electoral agency to express its challenges in delivering the election material on time.

"This is an extremely urgent matter more so that IEBC has received communication from the company that is printing ballots papers that because of the conservatory order, they will be having difficulties in delivering the ballot papers in time for the elections," added Mukele.

The two lawyers asserted that the process of printing ballot papers is complex due to logistics and security features of each of the ballot papers, hence stated that their client intended to petition the case to either stay the conservatory order or review its own decision.

"Based on the information we have received from suppliers from Greece, the ballot papers have to be transported from Greece directly to the polling stations. IEBC intends to file an application under certificate of urgency to stay the conservatory order or review the decision of this honourable court," added Mukele.

The two lawyers said their client is also ready to proceed with hearing of the application filed by former Nairobi Governor Mike Sonko challenging IEBC Dispute Resolution Committee decision to uphold Mombasa County returning officer Swalha Ibrahim Yusuf from declining to clear him to run the gubernatorial elections.

In a quick rejoinder, Sonko through lawyers John Khaminwa, Jared Magolo, Wilfred Nyamu Sonko, Derrick Odhiambo and Titus Kirui dismissed the IEBC's move as a waste of judicial time.

Khaminwa argued that IEBC should comply with law by adhering to the court order and respect the independence of the judicial process.

"Let them comply with the court orders. We are a democracy with a strong and independent judiciary and rule of the law in this country," added Khaminwa.

On his part, Nyamu told the court that the bench was constituted to determine serious constitutional matters that touch on Sonko's fundamental rights as enshrined in the Constitution.

"We cannot mitigate or sacrifice the rule of law because of commercial interest. As advocates, we should be fair to the court and the constitution. Those are words that only pass to frustrate the court. Printing of ballot papers is preceded by gazette notice. How can then the respondent move ahead with printing of ballot papers? This court is seized to determine fundamental rights of the petitioner which are violated or about to be violated and we are dealing with the sovereignty of the people of Mombasa and not just Sonko," added Nyamu.

Wiper Democratic Movement Party through lawyers Kevin Katisya and Lumallas Eunice echoed similar sentiments which urged the court to proceed with the hearing of the petition.

Meanwhile, the three-judge bench has directed that the Sonko petition will proceed Wednesday by way of written submission.

The court directed his lawyers to file and serve further supplementary affidavits including a video evidence by 9am on Wednesday and the respondents were also ordered to file and serve their replies by 11 am.

The judges further directed parties to appear in court at 12pm to highlight submissions with each party given 30 minutes to do so.

At the same time, the judge disallowed an application by two private citizens to be enjoined the petition in which Sonko is challenging IEBC Dispute Resolution Committee to uphold his disqualification to run for Mombasa gubernatorial seat.

The judges ruled that Mukindi Jwenge and Anderson Warui did not meet the legal threshold required to be enjoined in the petition as interested parties.

The court further ruled that their application based on articles 22 and 23 of the Constitution on the enforcement of fundamental bills of rights were not sufficient ground to warrant the court to grant their application

The three judges further stated that Jwenge and Warui cannot be friends of courts with legal expertise to enrich the court decision or guide it in arriving at appropriate findings.

"It becomes obvious to us that public interest is not sufficient grounds to enjoin parties. The leave to appear as friends of court ought to be done in writing," they said.

"The applicants have not demonstrated their expertise to be involved in the participation of the petition. The interested parties must be easily identifiable and prejudice suffered has to be demonstrated to the satisfaction of the court. It cannot be said the two applicants will suffer any prejudice. They have not demonstrated any stake in the case to the satisfaction of the court," ruled the court.

The judges added; "We were not convinced that the applicants will introduce any new elements into this petition. We have come to conclusion that the application by the second and third proposed interested parties has no merit and hereby dismissed it with no orders with the cost." - Kna

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