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Citizen Weekly

Sunday, 9 November 2014

SUPREME COURT TO RULE ON BICHAGE VERSUS TONGI PETITION

The Independent Electoral and Boundaries Commission allegedly received orders from “above” to file a fresh affidavit in the election petition for Nyaribari Chache constituency.
IEBC lawyer E Kinyangui admitted in the Supreme Court that is why he has filed conflicting affidavits following instructions from the source he did not disclose.
Whereas the commission’s chief legal officer J Jabare had stated that there was no judgment in the Court of Appeal in Kisumu on December 11 last year over an appeal by Chris Bichage of ODM, the chairman Isaac Hassan later swore an affidavit saying judgment was delivered and not orders.
The Supreme Court heard that when Bichage made an appeal following a by-election in December last year,  the  court only issued orders saying the case has no merit but did not give reasons setting the judgment date for February 12 this year.
However, Ochieng Oduol and Johnstone Masinde representing Bichage noted that it was until April 4 when the court delivered judgment giving reasons and direction as to who should meet costs of the suit.
They said it was from the court proceedings that they now moved to the Supreme Court to challenge what the court of appeal had ruled.
Oduol and Masinde noted their submissions that the High Court in Kisii errored to have nullified the election of Bichage following a petition by Richard Tongi of Ford- People because the letter failed to beat the set dateline.
They cited the petition against Othaya MP Mary Wambui, Governor Peter Munya of Meru and Hassan Joho of Mombasa which were stuck out because the petitioners filed their cases after 28 days expiry which is against article 87 of the constitution.
The lawyers said their appeal was competent since they filed it within the stipulated time and gave notice within 14 days stating the specific areas they wanted to challenge.
Oduol and Masinde were making their final submissions before judges Kalpana Rawal, Philip Tunoi, Jacktone Ojwang, Mohammed Ibrahim and Njoki Ndungu.
They said the judicial proceedings that followed Bichage’s appeal in the Court of Court of appeal were null and void because the by-election should not have been conducted in the first place owing to the late petitioning.
The Court of Appeal Judges who dismissed the defendant’s case includes Festus Azangalala, David Maraga and Jamila Mohammed.
In the March 4 general elections, Bichage won with 16,800 votes while Tongi had 16,500 votes. However, in the by-election order by Kisii High Court Erastus Mureithi, Tongi upset Bichage by 10,600 against the latter’s 10,200.The judgment in the case will be delivered on notice within the next 30 days.