The High Court has declined to bar the electoral commission from printing ballot papers for the Nairobi governorship election pending the determination of a suit challenging Senator Johnson Sakaja's qualifications and eligibility.
Justice Anthony Mrima rejected a request to issue interim orders from Dennis Gakuu Wahome, a voter who claims Mr Sakaja’s degree certificate is bogus, after the electoral agency said such an order could lead to the gubernatorial polls being cancelled.
Opposing the granting of the orders, lawyers for the Independent Electoral and Boundaries Commission (IEBC) convinced the court that any delay in the printing process could put the election in jeopardy.
“In view of the logistics, the process of generating ballots should be ongoing. Printing commenced on Thursday. [The] Process of generating requisite materials including ballots involves a massive logistical plan,” said IEBC lawyer Moses Kipkogei.
“[Issuing] conservatory orders at this point would [undermine the] capacity of IEBC to undertake its constitutional responsibility. Our request is that we file papers and argue the matter expeditiously.”
The judge concurred and urged the parties to file, exchange their documents and appear in court on Monday for an oral hearing of the case involving controversies about Mr Sakaja’s university education.
Judge Mrima also stated that orders to halt the printing of ballot papers would have affected other governorship candidates who are not parties to the lawsuit.
“On the request for conservatory orders, given that the orders will affect other parties before they are accorded an opportunity to be heard and given that steps have already been taken for an expedited hearing of this matter, such conservatory orders shall not be issued at this point in time,” the judge said.
He also declined a request by Mr Sakaja to enjoin the Attorney-General as a party in the suit following a recent decision by the Commission for University Education (CUE) to revoke his degree certificate.
The judge also barred Mr Sakaja from filing a cross-petition to the one lodged by the voter.
Through lawyers Elias Mutuma, Adrian Kamotho and Duncan Okatch, the senator told the court that he intended to file a cross-petition challenging the CUE’s decision.
However, the judge said Mr Sakaja has a right to challenge the CUE’s fresh decision in the Judicial Review Court just like he had done in the first instance.
The judge said there is no likelihood that the two courts would render conflicting decisions in the circumstances of the matter in dispute.
Orders and directions
“It is not in dispute the initial decision of CUE was challenged before the Judicial Review Court and orders and directions were issued. The CUE has once again made another decision. If Mr Sakaja intends to challenge the decision, CUE must be a necessary party. If enjoined, early determination of this matter must be compromised,” said the judge.
In the suit, the voter alleges that the degree certificate acquired by Mr Sakaja from Team University in Kampala, Uganda, is bogus.
“Mr Sakaja’s assertion that he is a graduate of Team University is factually incorrect, baseless and unsupported. The assertion is further contradicted by his own public declarations, categorically stating that he has never attended any university outside Kenya,” said Mr Wahome.
Through lawyers Paul Nyamodi and Njoki Mboce, the voter bases his case on declarations made by Mr Sakaja in the Nomination Application Declaration Form submitted to the Jubilee Party on March 9, 2017, where he indicated that he holds a degree from the University of Nairobi.
In another self-declaration form submitted to the Ethics and Anti-Corruption Commission (EACC) in 2017, the politician also indicated that he had a degree from the University of Nairobi.
“In both forms, there was no mention by Mr Sakaja of any other degree from any other university, including Team University,” said Mr Wahome.
“Therefore, any indication including by the elections returning officer that Mr Sakaja was cleared (to contest the governorship) on the basis of a university degree obtained from Team University, Kampala, Uganda is highly contradictory.”
In a radio interview yesterday morning, Mr Sakaja acknowledged that he dropped out of the University of Nairobi and did not graduate from there with a degree.
He said he decided to drop his actuarial science studies in his fourth year because he lacked school fees.
But Mr Sakaja said that after getting money and joining politics, he was too ashamed to return to the classroom.
He opted to enroll as a distance-learning student at Team University in Uganda.
“I was too embarrassed and shy to go back to class. And that’s something I’ll complete, I’ll finish it, through three or four units. But there is no law that says you must bring a degree from the University of Nairobi,” said the senator.
He added that the degree he acquired from the Ugandan school was valid.