What you need to know:
- Election officials evade direct court service while political parties call on their supporters to come out and cast their votes on Monday
- High Court ruling that elections would not go ahead because one of the candidates had been unjustly denied the opportunity to run sparks chaos
Confusion reigned over the fate of a key parliamentary by-election nullified by the court on Friday after election officials evaded court service and political parties urged voters to turn up on Monday.
Court servers pinned the court order on the doors of the election commission headquarters after the offices were closed before 5pm.
Senior election commissioners, who were not available to be served at their city headquarters on Friday, will meet Saturday morning to review the court ruling stopping the Kamukunji by-election set for Monday.
The High Court ruling that elections would not go ahead because one of the candidates had been unjustly denied the opportunity to run by the Interim Independent Electoral Commission (IIEC) sparked anger from political parties which vowed to go ahead with the polls.
The IIEC officers were said to be furious at the ruling and there were unconfirmed reports of orders to senior commission managers to avoid being served with the court orders.
A Commissioner, Mr Davis Chirchir, told Saturday Nation that they would meet today to evaluate the ruling, which they had not seen by the time of this interview on Friday.
“We are of course aware of the ruling, but have not seen it. However, we have to meet tomorrow (today), and decide on the way forward,” Mr Chirchir said.
Both PNU and ODM leaders were campaigning late Friday evening, determined to go ahead with the elections as the IIEC offices in the area closed down their offices on instructions of their seniors.
Deputy Prime Minister Uhuru Kenyatta, who led the campaigns for the PNU candidate, said that they were preparing for the elections in readiness for voting on Monday
“If the Court has decided, we really don’t know, but we shall go ahead preparing assuming Monday there is still an election,” he said.
“We don’t know if it’s a trick, but we will go ahead to Bahati, Gikomba and other areas of Kamukunji, we will go on as if the election is still on,” he said.
ODM secretary-general Anyang’ Nyong’o told voters to turn up in large numbers on Monday to vote for their candidate Ibrahim Ahmed.
“The Orange Democratic Movement calls upon wananchi in Kamukunji and all party supporters to continue with campaigns. The election will be held on Monday 23 May as planned and Johnny (ODM candidate Ibrahim Ahmed) is winning.”
IIEC chief executive officer James Oswago criticised the ruling arguing that they had spent at Sh50 million both in finance and other requirements to prepare for the by election.
He warned of the overall impact of the High Court ruling on the preparation of elections and the psyche of Kenyans in taking part in elections.
“The issue is not about the money. It’s about the general impact it will have on Kenyans. Are we going to have a situation where a person goes to court to stop an election three days from the voting day?” he asked.
Mr Oswago, who was in Kakamega, said elections were an event set on a predictable timetable and courts in most countries respected them.
“Elections are run on predictable time. Once you start the preparations, they should not be stopped and the High Court knows that,” he said.
At exactly 10.15am, High Court judge Daniel Musinga stopped the by-elections on grounds that the nomination process for candidates was “seriously” flawed.
“If the court were to endorse the manner in which the IIEC’s conducted the nomination, it would mean that a returning officer can be influenced by a party or other candidates to reject nomination papers of another candidate,” he ruled.
Mr Paul Waweru Mwangi, a National Vision Party (NVP) aspirant, had gone to court seeking to block the polls arguing that he had been denied a chance to contest the seat by the Kamukunji returning officer, Mr Masindet Joseph Leboo.
The court also found that IIEC had conducted nomination in a manner that violated Mr Mwangi’s constitutional right.
Mr Mwangi, who filed the case against the commission had told the court that the officer had acted under pressure from the PNU, which feared that should he contest, he would dilute the party’s candidate, Mr Yussuf Hassan’s vote.
Justice Musinga stopped the by-election stating that the IIEC violated the aspirant’s constitutional right to be a candidate in the by-election.
“If the court, having found that the nomination exercise was seriously flawed, fails to grant an order of injunction to restrain the respondents from holding the by-election,” the judge said, “it will be frustrating all the gains that have so far been made in our electoral process.”
He granted an injunction against IIEC stopping them “from holding, directing, conducting or otherwise supervising the Parliamentary by-election of Kamukunji Constituency scheduled for May 23, until the petition is heard and determined.”
The court appreciated that a lot of effort had been made by the commission, political parties and various candidates and voters for the by-election, but the court had to discharge its Constitutional mandate.
“Without transparent nomination of candidates, there cannot be transparent elections.”
The court had heard that Mr Masindet, who was in charge of the by-election, refused to take the aspirant’s papers because they were not valid.
However, he did not immediately write the reasons for declining and sign against them as required by electoral regulations, lawyer Kibe Mungai, for the aspirant, told the court.
The IIEC also argued that records from the Registrar of Political Parties indicated that the aspirant was a member of the PNU hence could not have been validly nominated by NVP.
In addition, the candidate did not duly sign his forms before returning them to the commission on the nomination day — a claim the aspirant said could not legally stop the returning officer from receiving the papers.
Hours after the court ruling, Mr Kenyatta and other party members addressed a large meeting at Charter Hall, Nairobi, where PNU supporters had gathered to express their support to their candidate, Mr Hassan.
Reports by Paul Juma, Caroline Wafula and Peter Leftie