A High Court in Mombasa has transferred a case seeking to bar Malindi MP Aisha Jumwa from vying for the Kilifi gubernatorial seat to the High Court in Malindi.
The case was filed by three petitioners, Rajab Menza, Daniel Kahindi and concerned Kenyan who are challenging Jumwa’s eligibility to vie as a governor of Kilifi.
The petitioners claim the Malindi MP lacks a university degree, which is a requirement for gubernatorial candidates.
Jumwa is listed as the first respondent, IEBC as the second respondent, the Commission for Higher Education as the third respondent, and Ethics and Anti-corruption Commission as the fourth respondent.
Through their lawyer, Derrick Odhiambo, the petitioners had asked the High Court in Mombasa to certify the case as urgent, restrain IEBC from gazetting and processing Jumwa’s nomination papers, and consequently bar her from contesting for the seat of the governor of Kilifi County in the August 9 general election.
Jumwa is represented by lawyers Danstan Omari and Shadrack Wambui while Titus Mutugi and Sheila Muthee are representing the IEBC.
The electoral commission had filed a preliminary objection to the case on Friday last week, arguing that the case should be heard and determined by the IEBC Disputes Resolution Committee.
On Monday, Lady Justice Olga Osewe of Mombasa High Court directed the case be heard in Malindi High Court.
“I’m transferring this matter to Malindi High Court, where Kilifi falls and so I instruct Mr Odhiambo (the petitioners’ lawyer) to get everybody on board before those orders are made.
“This is because we have similar matters and we know the nature of these matters– they are urgent and we have to prioritize them and so there is a need for distribution of work,” Justice Osewe said.
Counsel Odhiambo still asked the court to grant the conservatory orders as requested by the petitioners, “in the interest of justice.”
“We request that you grant us prayer number two, on account of, if the IEBC calendars are irreversible, and if the IEBC proceeds and gazettes the first respondent this matter is going to be rendered an academic exercise,” Odhiambo said.
The second prayer seeks to bar the IEBC from gazetting the first respondent as a gubernatorial candidate for Kilifi County.
Odhiambo added that in case of such eventuality, the first respondent would end up on the ballot paper while her academic credentials are questionable.
Omari opposed the request of granting interim orders to bar his client, terming the prayer ‘premature’, especially after the defence side had placed preliminary objections to the case.
Sheila Muthee for the IEBC also opposed the petitioners’ request and further argued that the High Court has no authority to hear and determine the matter before it.
“We have filed a preliminary objection and our issue is jurisdiction. We are objecting as to whether this court or even the court in Malindi has jurisdiction to hear this matter or grant any orders in relation thereto,” Muthee told the court.
In response, counsel Odhiambo argued that “Article 165 of the Constitution clothes the High Court with original jurisdiction on matters of election”.
Furthermore, he said that the IEBC Disputes Resolution Committee, where the respondents want the matter to be heard and determined, lacks the jurisdiction to determine academic matters of assistants.
“That’s a decision which was confirmed in the petition of Johnson Sakaja versus the IEBC,” he said.
The IEBC Disputes Resolution Committee, while determining Nairobi gubernatorial aspirant Johnson Sakaja’s degree case on June 19, said IEBC does not have the legal mandate to verify the authenticity of candidates’ certificates.
Odhiambo told the court that the petitioners are ready to drop the case the moment the first respondent shows proof of her academic papers.
“If you have a degree don’t circumvent through jurisdiction processes. Produce the degree and withdraw the case, as simple as that.”
Justice Osewe denied granting the conservatory orders sought by the petitioners and directed that the case be heard in High Court in Malindi on Tuesday at 9 am.