An election petition Judge in Kajiado has quashed a chief magistrate’s ruling made in November against the election of Elizabeth Kibor as a nominated MCA.
Justice Chacha Mwita in a landmark ruling on April 23 said former Kajiado Chief Magistrate Susan Shitubi while handling an election petition, nullified the election of Kibor after it found that she was not properly nominated and later gazetted as an MCA.
Aggrieved with that decision, the appellant (Kibor) filed a memorandum of appeal dated November 7, 2019, and amended it later on November 21, the same year.
In her appeal, Kibor said the learned magistrate erred in law and fact in nullifying her election as a member of the Kajiado county assembly.
She said the magistrate failed to appreciate, and or misapprehend salient provisions of the Constitution of Kenya 2010, the Election Act, 2011, and the Rules of the nomination of party lists thereby arriving at an absurd conclusion.
The lawmaker told Justice Mwita the learned magistrate erred in law by allowing the petition despite the glaring evidence of non-compliance with the mandatory provisions of Section 78 of the Elections Act No. 24 and Rules2, 7 and 8 of Elections (Parliamentary and County Elections) Petition Rules.
The respondents in the election petition case No. 1 of 2019 at Kajiado that was filed by Kibor were; Isaac Oseur, Arnold Ochieng (ODM), Independent Electoral Commission, Wafula Chebukati and Speaker of Kajiado County Assembly.
Kibor’s 18 Grounds
Kibor had provided 18 grounds to prove Shitubi had made a terrible judgment in a case against her and prayed that the appeal is allowed; judgment and decree of the election court set aside and declare her as validly nominated and elected MCA.
The judge said Oseur and Ochieng (respondents) did not deposit security for costs in the lower court as required by law.
“The trial court heard the petition due to shortage of time but did not make a definitive determination on whether the petition was properly before it or it could hear and determine it before payment of security for costs.
Kibor, earlier, had argued that the learned magistrate erred in law by admitting the first respondent’s (Oseur’s) response to the Election Petition despite glaring evidence of non-compliance with the mandatory provisions of the Elections Act N0. 24 of 2011.
Justice Mwita ruled that Oseur and Ochieng could not present the petition and that the petition was incompetent for failure to comply with section 78(1) of the Elections Act on payment of a deposit for costs.
“That being the case, there was no way an incompetent petition could be proved,” said Justice Mwita in his ruling.
He went on; “Having, therefore, considered the appeal, submissions, the law, and relevant decisions, I am satisfied that this appeal has merit and succeeds.”
Consequently, the Judge said the appeal dated November 7, 2019, is allowed.
The judgment and decree of the election court dated November 6, 2019, is set aside, Justice Mwita said.
“In place, therefore, an order is hereby issued dismissing the petition before the trial court with costs against Oseur and Ochieng being 1st and 2nd respondents in this matter,” the Judge ruled.
He said the costs should be assessed but are hereby capped at not more than Sh200,000.
Kibor was represented in the case by three prominent city lawyers; Fleming Lumumba, Emily Osiemo, and Christopher Ayieko, all from Lumumba & Ayieko Advocates.