Court dismisses petition seeking to bar Jumwa from Kilifi governor race
Malindi MP Aisha Jumwa.
The High Court in Mombasa has dismissed petitions seeking to lock Malindi MP Aisha Jumwa from the Kilifi governor’s race in the August 9 polls.
Justice Stephen Githinji struck out two petitions filed against Ms Jumwa, noting that his court had no jurisdiction to deal with the cases.
The judge upheld a preliminary objection raised by the respondents, saying the petitioners should have first approached the Independent Electoral and Boundaries Commissions (IEBC) Disputes Resolution Committee (DRC) before rushing to the court.
“It is clear that this court is in want of jurisdiction to hear the two petitions. As such, I do find the preliminary objection merited. It is allowed and the petitions are therefore struck out,” said Justice Githinji.
Kilifi residents Karl Katingu, Daniel Chengo, Rajab Menza and Concerned Citizens Kenya had in three separate suits challenged the nomination and gazettement of Ms Jumwa as United Democratic Alliance (UDA) candidate for the post.
Their main and common argument was that Ms Jumwa does not meet the legal qualification to vie for the position because she lacks a university degree from a recognised institution in Kenya.
They listed the IEBC, Commission for University Education, Ethics and Anti-Corruption Commission (EACC), International Leadership University and three others as respondents.
The petitioners based their case on a bail assessment report filed in court on October 22, 2020, which they argued confirmed that Ms Jumwa has never been awarded a degree.
They lamented that Kilifi residents will be disenfranchised if the MP is irregularly and illegally cleared to contest the seat without meeting the qualifications set in law.
Through their advocate, Derick Odhiambo, the petitioners alleged that Ms Jumwa did not produce valid and genuine academic documents when she sought clearance from the IEBC.
The petitioners then asked the court to find that Ms Jumwa’s nomination by the UDA did not meet the minimum qualifications for her to be cleared to contest.
They also wanted a declaration that the legislator did not meet the requirements of Chapter Six of the Constitution on leadership and integrity
However, before the case could proceed to a full hearing, Ms Jumwa raised an objection questioning the authority of the court to entertain the cases.
The legislator cited Article 88(4) (e) of the Elections Act, which she said deprived the court of jurisdiction to hear the petitions.
The cited section of the law gives the IEBC the mandate to settle electoral disputes, including those relating to or arising from nomination but excluding election petitions and disputes subsequent to the declaration of results.
“I urge the court to find that the issue raised in the petitions is a matter within the jurisdictions of DRC, and not this court. Therefore, this court should allow the application,” she said through her advocate, Musyoki Mogaka.
The petitioners said they were aware of the Elections Act giving the DRC the mandate to deal with the matter but said that could be exempted in recognition and accommodation of exceptional circumstances in the case.
“This court has unlimited original jurisdiction in criminal and civil matters,” said the petitioners.
Justice Githinji agreed with Ms Jumwa that it is the IEBC that considers whether a candidate meets the statutory qualifications to vie for a given seat or position and that the DRC, thereafter, deals with pre-election disputes like the one filed by the petitioners.
“The petitioners have not demonstrated why they could not or did not consider taking the issue before the correct body for redress,” said the judge.
Quasi-judicial forums or bodies such as the DRC and the Political Parties Dispute Tribunals, the court said, exist for a good reason and should be sufficiently utilised.
Dismissing the petitions, the judge noted that courts are busy and mostly overwhelmed and would only act in deserving extraordinary circumstances.
“I am not convinced that a matter of this nature, which questions the existence or not of a university degree for a candidate is in the said category,” said the judge
The ruling leaves Ms Jumwa with no dispute questioning her academic credentials, paving the way for her to concentrate on her campaigns.
Also in the Kilifi governor’s race are George Kithi of Pamoja African Alliance (PAA), Gideon Mung’aro (ODM), Dzombo Mbaru (Safina) and independent candidates Michael Tinga and Francisco Esposito alias Kasoso wa Baya.
