Karua loses bid to try IEBC officials

Martha Karua

Narc Kenya leader Martha Karua. Her application to prosecute Jubilee Party agents and officials of IEBC was dismissed for lack of merit.

Photo credit: Joseph Kanyi | Nation Media Group

Narc-Kenya Party leader Martha Karua has failed in her bid to privately prosecute Jubilee Party agents and officials of the electoral commission for offences allegedly committed in Kirinyaga County during the 2017 governorship poll.

Ms Karua wanted court to grant her permission to prosecute three agents of the ruling party and three officials of the Independent Electoral and Boundaries Commission (IEBC).

The IEBC officials were named as Mr Samuel Seki, who was the Kirinyaga County returning officer, Ms Angela Wanjiru Maina (presiding officer) and Julius Maingi (Mwea election coordinator).

The Jubilee agents that she wanted to prosecute were Mr James Muriithi Kang’ara, David Kariuki Mwaniki and Moses Kiama Muthike.

But Milimani Senior Principal Magistrate Abdul Zainab in Wednesday dismissed Ms Karua's application for lack of merit.

The magistrate said Ms Karua failed to present evidence to prove that Director of Public Prosecutions (DPP) Noordin Haji had failed to discharge his mandate as provided under Article 157 of the Constitution, which grants him powers to commence a criminal case against any citizen.

"I find the application for private prosecution by Ms Karua lacks merit and is hereby dismissed," Ms Abdul ruled.

She further said Ms Karua did not file a formal report with the Directorate of Criminal Investigations (DCI) on the alleged electoral offences for investigations to be carried out.

Ms Karua filed the application in April, 2021 five months after the East African Court of Justice (EACJ) awarded her US dollars 25,000 as damages for violation of her right to fair hearing by Kenya’s Supreme Court.

In her court papers, she said her decision to pursue private prosecution was prompted by failure of DPP and the DCI to act on her complaints in relation to the alleged electoral offences committed in Kirinyaga.

She indicated that on May 9, 2018, she wrote to the DPP seeking criminal investigation on those found culpable for the theft and loss of her video evidence which showed a Jubilee party chief campaigner bribing voters at Kangaru Primary School.

Through lawyer Gitombu Imanyara, Ms Karua said the DPP had informed her that he would issue appropriate directions once courts were done with a petition in which she was challenging the election of Governor Anne Waiguru.

Her letter to the DCI dated December 18, 2018 seeking investigations into the acts of voter bribery and neglect of official duty by IEBC officials was also yet to be addressed.

The lawyer said the IEBC officials allowed tampering of sealed gubernatorial ballot boxes.

"Maintaining a more than usual and reasonable reticence, however, the DCI has failed, refused, neglected or exhibited inordinate and unreasonable and inexplicable delay to investigate (and the DPP to prosecute) the six people for the disclosed electoral offences," Mr Imanyara told the magistrate court.

According to him, the delay by the State agencies violated section 22(1) of the Election Offences Act, 2016 which requires DPP to commence the criminal proceedings within a year of the election.

The IEBC had opposed the application, saying that the court lacked authority to hear and determine election related cases.

Through lawyer Julius Anyoka, the commission said the court was not Gazetted to handle election related offences.

He also told the court that 12 months had lapsed from the date of the commission of the alleged offences and there was a determination of the election petition by the High Court.

Mr Anyoka argued that the High Court had declined to make a finding on electoral malpractices, saying Ms Karua did not tender proof of the same allegations before the court to warrant further action.

"There is no evidence to the court that there was commission of such offences of bribery among others," said Mr Anyoka.

Ms Karua lost to Ms Waiguru after garnering 122,091 votes against Waiguru’s 161,373 votes.


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