Machakos Court adjourns hearings in poll petition

The Machakos High Court on Thursday suspended the hearing of an election petition pitting Wavinya Ndeti and Machakos Governor, Dr. Alfred Mutua after the latter requested for more time to prepare his defense team.

Justice Agrrey Muchelelue granted the request by Dr. Mutua after his lawyer, Musyoka Kimeu asked for more time to go through the court documents on the petition.

In a development that shocked Wavinya’s supporters and her lawyers, Kimeu told the court he was not familiar with the matter and it would therefore be prejudicial to go on with the proceedings without allowing him to peruse the contents of the petition.

Eventually, both parties agreed to push the matter to Friday when the case is expected to come up for hearing.

Wavinya, through her lawyer, Martin Gitonga said they would abide by the ruling to ensure the matter is heard and determined expeditiously.

Today’s hitch was precipitated by the decision by Dr. Mutua to withdraw from Tuesday’s court hearings, citing bias by the Judge.

Trouble started after lawyers representing Dr. Mutua announced their decision to pull out from the day’s proceedings alleging bulldozing by Justice Aggrey Muchelule.

Led by Wilfred Nyamu and Bernard Mung’ata, the governor said they were pulling out in protest with the court’s insistence that the hearing would continue despite a notice of appeal by the governor to an earlier ruling by the same court that was still pending determination in Nairobi.

The governor had notified the court of his intention to file an appeal after Justice Muchelule struck out an application that wanted Wavinya Ndeti’s petition challenging the county boss re-election struck out.

However, while making his ruling on the matter on November 10, 2017 the court dismissed the prayer, citing several legal loopholes that were in contravention to the law.

Dr. Mutua had filed the petition pushing for the dismissal of the case saying it was filed in contravention to the laws on election petitions.

The court however threw out Mutua’s application, saying it was based on flimsy technicalities that were inadequate to grant his request as they went against the provisions of Article 159(2) d of the constitution.

Article 159(2) d of the constitution on Judicial Authority and Legal Systems stipulates that justice shall be administered without undue regard to procedural technicalities.

This court must be careful not to elevate legal and technical matters over substantive issues,” read part of Muchelule ruling.

The court had nevertheless granted Mutua’s prayers (through his then lawyer, Benson Musau) to seek leave in appealing the ruling within seven days after the judgment.

The governor had cited five areas in which he said the petitioner had flouted the election laws rendering her application a nullity.

In advancing his case, the governor had faulted Wavinya for not enjoining his running mate Francis Maliti claiming he should have been part and parcel of the respondents.

The County boss had also argued that the petitioner failed to honour the legal requirements outlined in serving of affidavits to the court as set out in Rule 12 of County and Parliamentary Election regulations.

Mutua had also told the court that the petitioner failed to adhere to the provision of election petition rules when carrying out advert of petitions in the media.

He claimed the form of notice; its size and even the font size were in contravention with Rule 10, 3b and 3c of the election petition laws and should therefore be disqualified.

On Tuesday, the embattled leader urged the court to grant him more time to seek legal representing saying he could be prejudiced and his constitutional rights violated if the case will move on without his lawyers.

His request was granted with the court giving him up to Thursday (today) to enable him seek legal representation.

Ndeti moved to the court on September 5 to challenge the victory of Dr. Mutua alleging that the August 8 election for the position of governor was skewed in favour of the incumbent.

In the case, Wavinya has listed IEBC,Machakos Returning Officer, Joyce Wamalwa and Dr. Mutua as the first ,second and third respondents respectively.

Wavinya has exuded confidence that justice will finally be served based on the evidence contained in her 10,000 page affidavit that her lawyers intend to present to the court during the hearing.

During the August 8 election, Machakos IEBC Returning Officer, Joyce Wamalwa declared Dr. Mutua the winner of the gubernatorial seat after garnering a total of 244,954 votes against the former petitioner who came second with 209,233 votes.

Source: Kenya News Agency