Machakos Governor Dr Alfred Mutua Tuesday made a surprise move after he withdrew from court hearings citing bias from the judge.
Trouble erupted after lawyers representing Dr Mutua announced their decision to pull out from the day’s proceedings alleging bulldozing from the court judge justice Aggrey Muchelule.
Led by Wilfred Nyamu and Bernard Mung’ata,the governor said their withdrawal was in protest to 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 a 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 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.
But Tuesday, the embattled leader urged the court to grant him more time to seek legal representation saying he could be prejudiced and his constitutional rights violated if the case will move on without his lawyers.
His request was finally granted with the court giving him up to Thursday (tomorrow) to 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