Musila applies to be enjoined in Malombe-Ngilu election petition

The election petition pitting former Kitui Governor Dr. Julius Malombe against the incumbent Charity Ngilu Wednesday took an interesting twist after former Kitui Senator David Musila sought to be enjoined in the matter.

Musila, through his lawyer Morris Kimuli, prayed to the court to enjoin him as an interested party in the case owing to his being a bona fide candidate in the disputed gubernatorial election.

In the petition, Ngilu, IEBC and Kitui County Returning Officer Gogo Albert Nguma have been listed as the first, second and third respondents respectively.

Malombe is represented by Senior Counsel Okongo Omogeni and lawyer Apollo Muinde, Senior Counsel Kioko Kilukumu appears for Ngilu, while lawyer Dorothy Mageto is defending the electoral body alongside Nguma.

Kimuli told the presiding Judge Lady Justice Pauline Nyamweya that his client only wished to take part in the case as an interested party and he doesn’t plan to interfere with, or prejudice its outcome in any way.

Musila was among the three candidates who participated in the disputed Governor’s contest and as such wishes to be part of this petition besides being curious to know what really transpired during the polling day, he said.

The lawyer further told the court that Musila wishes to be part of the court’s decision in the event it orders a recount or/and scrutiny of the physical ballots cast on August 8, 2017.

But the application was vehemently objected to by lawyers of the existing litigants who questioned the rationale behind the former Senator’s application.

Muinde said he was under strict instructions from his client to object to Musila’s enjoinment application, since his coming on board will add no value whatsoever to this matter.

His desire to know what lies in the ballot boxes bearing Kitui County’s gubernatorial votes does not warrant his merit to take part in the petition. The case is a public matter and Musila will know the outcome all the same, he argued.

On his part, Kilukumi maintained that 79 days had lapsed since conduct of the August 8th national polls and wondered where Musila has been all that time.

The senior counsel also argued that the only time an interested party could be enjoined in an election petition was for the purposes of replacing petitioner in the event of his/her death amid trial.

Mageto urged the court to dismiss the enjoinment prayers as hearing and determination of this matter is bound by strict constitutional timelines which have to be adhered to by all means.

Besides, Musila should have filed his request during the pre-trial conferences in which interlocutory applications were made by each of the involved parties. The hearing dates have also been set and all litigants are ready to proceed, she told the court, Mageto pointed out.

However, Kimuli stood his ground and defended the application saying his client has every right to be encompassed in the petition especially given that he, Musila, was a candidate and a bona fide stakeholder in the election in question.

He wishes to firsthand witness and know what the contents of the ballot boxes, should the court order their reopening and subsequent recount or/and scrutiny of the votes therein, reiterated Kimuli.

Ruling on the application would be delivered during resumption of proceedings on November 15, 2017.

The court also directed that IEBC surrenders to the court’s registrar copies of data downloaded from KIEMS kits used in identifying voters during the gubernatorial election within the next 14 days.

Prayers by the petitioner and the first respondent to affix extra seals to ballot boxes containing the gubernatorial votes were also granted though it was ordered that the election materials must remain under custody of IEBC.

Malombe early last month moved to the High Court in Kitui to seek invalidation of Ngilu’s election in the August 8th General Election over alleged electoral irregularities and illegalities.

The pioneer governor of Kitui County has also alleged that Ngilu’s agents rigged the election in her favour.

Claims that his agents were barred from various polling stations, especially those in Kitui Central and Kitui East Constituencies, during the polling day have also been advanced as another ground for the petition.

The former governor, who unsuccessfully defended the seat on the Wiper Party ticket, further wants the court to order a fresh gubernatorial election should it be determined that the exercise was bungled.

Ngilu was declared as the duly elected second governor of Kitui County with 169,990 votes, followed by former Kitui Senator David Musila (114, 827 votes), while Malombe came a distant last with 74, 681 votes.

Source: Kenya News Agency