Judges uphold Kethi’s election ban

Lawyer Kethi Kilonzo’s dream of succeeding her late father Mutula Kilonzo as Makueni senator was shattered on Friday after the High Court upheld a decision to revoke her nomination.

It was, however, a win for Wiper Democratic Movement and the Cord coalition as the party was given a second chance to nominate another candidate to contest the seat on July 26.

Justices Richard Mwongo, Weldon Korir and Mumbi Ngugi ruled that the electoral commission’s Dispute Resolution Committee did not violate any of Ms Kilonzo’s constitutional rights, and that it was justified in revoking her nomination certificate after it established she was not a validly registered voter.

“The tribunal has the powers to determine nomination disputes and we are unable to find any contention that she was denied the right to a fair hearing. The committee’s determination was based on evidence and her own admission that she did not vote in the General Election or bother to verify her registration status,” ruled the judges.

The bench said it had examined the circumstances around Ms Kilonzo’s registration and concluded that she was not qualified to contest in the by-election, and blamed her for trying to shift the blame to the commission.

“We wonder why a diligent lawyer like her failed to check the register even when questions were being raised over her registration. She cannot turn around and accuse the commission of violating her legitimate expectation when the committee conducted themselves properly in reaching the decision,” they ruled.

According to the judges, it was not right for Ms Kilonzo to base her arguments on assumptions that the commission had allowed other people in same predicament to vote, ruling that it would be wrong to condone an illegality just because it had passed unpunished elsewhere.

Usurping powers

They rejected Ms Kilonzo’s arguments that the committee should have transferred the matter to the court for arbitration, ruling that it would be usurping powers which the Constitution donated to tribunals and other quasi-judicial bodies.

“Her contentions were effectively passing a challenge on Article 88 of the Constitution, which is insulated from interference from any court. As long as the dispute was heard and determined by the committee, we cannot find any evidence of predetermined opinion.”

The judges also dismissed claims by Ms Kilonzo that she was not accorded a fair trial, and that the committee was hostile to her lawyers— ruling that they were actually given time to check the evidence and cross-examine witnesses.

The ruling affirmed IEBC’s mandate in resolving disputes arising from nominations, with the judges dismissing claims by Ms Kilonzo and Wiper party that they acted like “judges sitting on their own case.”

The petitioners argued that the commission had no jurisdiction to hear the dispute since it was also accused of clearing a candidate whose registration as a voter was being questioned.

The judges, however, ruled that Article 88 of the Constitution and Section 24 of the Elections Act bestowed power on the IEBC to resolve any dispute involving all stages of nomination.

“The complaints filed before it were not scandalous since they fell squarely in their jurisdiction, and they did well to go to the root of the problem by providing evidence and calling witnesses,” said the judges.

The court defended the committee over claims that it accepted to mediate in a matter not involving the same political party, ruling that the law does not restrict a member of a different party from questioning the nomination of a member of a rival party.

“Although there was no formal complaint before the returning officer, his decision was not final and was subject to review by the committee upon filing of a complaint. It is only after the election that the decision can be challenged through an election petition,” ruled the judges.

In giving Wiper a second chance to field another candidate, the judges ruled that the committee had violated the party’s legitimate expectation to field a candidate, which would ultimately deny the party’s supporters opportunity to elect a leader of their choice.

“The legitimate expectation of a party to field a candidate cannot be taken away,” ruled the judges.

There was no evidence that the party was aware that Ms Kilonzo was not a registered voter, the bench ruled, and faulted the IEBC tribunal for failing to accord Wiper the chance to nominate an alternative candidate.

The judges gave the party 20 hours to nominate another candidate and present the name to Makueni County returning officer at 8am today in Wote Town.

They also ordered the IEBC to gazette the name on Monday.