A Kakamega court on Thursday dismissed a bid by the electoral agency to stop it from hearing two petitions challenging the validity of Senator Cleophas Malala’s candidacy for governor in the August 9 elections.
The Independent Electoral and Boundaries Commission (IEBC) had filed two preliminary objections questioning the jurisdiction of the High Court to hear the case.
The IEBC argued that the court was usurping the agency’s powers to nominate, validate or invalidate the senator’s nomination.
They wanted the petitions dismissed on the grounds that the application sought to interfere with the agency’s work and direct how it should carry out its mandate under the Constitution and the Elections Act.
But Kakamega High Court Judge Paul John Otieno threw out the two petitions on the grounds that they lacked merit.
But Senator Malala is not out of the woods yet.
He will know whether his name will be gazetted by the IEBC as a candidate for Kakamega County governor on Friday, June 24, when the same court rules on the applications challenging his clearance as a candidate.
His name should not be gazetted
Mr Malala was cleared by the IEBC on June 7 but the court ruled that his name should not be gazetted until the petitions were heard and determined.
Two voters, Mr Fred Muka and Mr Franklin Shilingi Anguche, had filed petitions challenging the validity of Mr Malala’s academic papers.
They asked the court to verify the validity of the academic certificates Senator Malala presented to the IEBC.
The Elections Act requires a person vying for the governor’s seat to be a holder of a degree from a university recognised in Kenya.
In the petition, Senator Malala, the vice-chancellor of United States International University (USIU), Commission for University Education (CUE), Kenya National Examinations Council, IEBC, Kakamega IEBC returning officer, Ethics and Anti-Corruption Commission and Director of Criminal Investigations are named as respondents.
Lawyer Charles Malala, for Senator Malala, argued that if the court’s ruling remained, the issues raised by the petitioners could be used between now and Election Day to lock Mr Malala out of the elections.
“I urge the court to [consider] the respondent’s right and find that he can participate in the election process in the coming elections and others that may follow,” said lawyer Malala.
Asking the court to revisit the orders barring the gazettement of Senator Malala as a candidate, he continued: “Issues raised by the petitioners border on criminal activities and my client requires assumption of innocence, which is a right to every Kenyan citizen.”
Mr Malala, the lawyer, said it would be an injustice if the court denied his client the right to contest.
On Friday (tomorrow), the court will determine whether the IEBC can gazette Mr Malala as a candidate. On Monday, June 27, it will determine the two original petitions filed by the applicants on Senator Malala’s academic qualifications.
Editor's note: An earlier version of this story reported that the court had dismissed with costs two cases challenging the academic qualifications of Senator Cleophas Malala after the judge ruled they lack merit. We have since learnt that the court instead ruled on applications by IEBC on whether the court can hear the case. The court will rule on the substantive matter on Friday. The error is regretted.