Taita Taveta Governor Granton Samboja will be on the ballot to defend his seat after the High Court in Mombasa yesterday declined to bar him from contesting in the August 9 polls.
Justice Njoki Mwangi ruled that Mr Samboja would be greatly prejudiced if he was stopped from defending his seat.
The judge noted that since the Independent Electoral Boundaries Commission (IEBC) had cleared him, the governor could now not be stopped by the court because the electoral body had verified his documents before clearing him.
“Mr Samboja has been serving as a governor since 2017. Since he has been cleared by the IEBC, the assumption is that his documents are in order. It would be prejudicial to deny him his political rights,” said the judge.
The ruling paves the way for Mr Samboja’s name to be gazetted as the Jubilee Party candidate for Taita Taveta governor.
The case was filed by Mr Jeremia Kiwoi, who sought to block the governor from defending his seat.
Mr Kiwoi had asked the court to issue orders blocking the IEBC from gazetting Mr Samboja’s name as the Jubilee candidate for the seat until his new petition was heard and determined.
The petitioner has questioned Mr Samboja’s eligibility to contest the seat over his academic papers.
He claimed the governor has failed constitutional provisions on leadership and integrity and should be blocked from running for public office.
He alleged in court papers that the governor used fraudulent means to be cleared in 2017 and that his claim that he had graduated with a bachelor of commerce degree from Kenyatta University was a lie.
“It is clear that the degree was a forgery. The Ethics and Anti-Corruption Commission (EACC) and the university confirmed that he was not a student at the institution,” he said.
Mr Samboja was last month cleared by the IEBC to defend his seat after producing academic documents from Costa Rica University.
This prompted Mr Kiwoi to move to the IEBC Dispute Resolution Committee to overturn the governor’s clearance, alleging that he had no proper papers to be cleared to seek re-election.
But the committee dismissed Mr Kiwoi’s case and ruled in favour of Mr Samboja, noting that it was satisfied with the documents that the governor had produced before the IEBC. The committee said the governor’s degree was valid.
Dissatisfied with the panel’s decision, Mr Kiwoi moved to court and sought to have Mr Samboja blocked from defending his seat based on the same claims about academic documents.
Mr Samboja filed a preliminary objection to the suit, arguing that the court had no jurisdiction to handle the case because the IEBC disputes panel had determined the issues raised in the petition.
Through Ogeto, Otachi & Company advocates, the governor argued that the petitioner should have appealed against the panel’s decision if he was not satisfied with it instead of filing a separate petition over the same matter.
“The application and the petition is incompetent and bad in law for reasons that the petitioner, having failed to lodge the requisite appeal, cannot purport to circumvent the laid down procedure by presenting this case in an attempt to reopen that which has already been determined,” the lawyers argued.
They also opposed the petition on the grounds that it touches on matters that were alive and pending in a Nairobi court. The case was filed by activist Okiya Omtatah against Mr Samboja.
“It is trite and settled law that no court shall proceed with the trial of any suit or proceedings in which the matter in issue is directly and substantially in a previously instituted suit between the same parties,” they said.
In his petition, Mr Kiwoi argues that the tribunal erred by dismissing his petition and that residents were likely to be duped into electing a candidate who is unfit to stand for any elective position.
He maintains that Mr Samboja used forged documents to get clearance in 2017 and that he failed the integrity test by lying that he had genuine certificates.
The petitioner wants the court to order the Commission for University Education to verify whether Costa Rica University is an accredited institution in Costa Rica and properly verify his certificates and present them in court.
Mr Kiwoi argues that he was aggrieved by the decision of the tribunal that he said violated the Constitution and his right to fair administrative action.
Justice Mwangi has directed the parties in the suit to file and serve their documents within the next three days.
The case will be heard on July 19