IIEC asks Court to annul Kamukunji injunction

The Interim Independent Electoral Commission (IIEC) on Tuesday asked the Court of Appeal to stop a further enforcement of an order, which bars the Commission from conducting the Kamukunji by-election.

However, lawyer Kibe Mungai, representing Mr Paul Waweru Mwangi, an aspirant who filed the petition at the High Court and obtained the injunctions said the IIEC will have to conduct a fresh by-election regardless of the outcome from both the Appeals Court and the High Court petition.

The Court of Appeal panel consisting of judges Philip Waki, Alnashir Visram and Otieno Onyango, said they will deliver a ruling on July 29.

IIEC is represented by a team of lawyers led by Mr Pheroze Nowrojee.

According to Mr Mungai, the orders sought by the IIEC appeared to suggest that Kamukunji voters would immediately proceed to elect their MP from the candidates already nominated.

“There is apprehension that there should be an MP in Kamukunji, but elections must be governed by law,” he said, adding that Mr Mwangi had equal rights as other candidates to contest the by-election.

IIEC wants the Appeal Court to issue orders that prevents the execution of the High Court orders, which stopped the by-election.

The Commission has also asked the court to prevent Mr Mwangi from directly or indirectly halting or interfering with the further holding of a by-election in Kamukunji constituency.

But according to Mr Mungai, the Appeal Court has no power to give such orders.

He said that the court’s jurisdiction was to hear appeals of judgments from the High Court, yet his petition against the IIEC was still pending at the High Court.

“Both under the old Constitution and the new Constitution, this court has no power to enforce fundamental rights. That is the jurisdiction of the High Court,” he told the judges.

He added that the orders sought by IIEC “is an invitation to this court to claim superiority over the Constitution”, which he argued guarantees Mr Mwangi’s fundamental rights that were enforced by the High Court.

The IIEC responded that Mr Mungai failed to show the court any Article of the Constitution or any court rules to support his claim of lack of jurisdiction.

Mr Nowrojee, for the commission, argued that Mr Mwangi, who intended to contest the Kamukunji by-election through the National Vision Party, was desperate to stall the by-election by any means possible.

He also accused the aspirant of trying to contest the seat on a party that he did not belong to.

He said Mr Mwangi was an immediate member of PNU adding that there was no attempt to explain how he quickly switched parties a few days before the nominations.

But lawyer Mungai accused IIEC of selective application of the Political Parties Act to lock out Mr Mwangi, giving an example: “The PNU candidate Mr Hassan has always been a member of ODM-Kenya. He participated in the PNU Nomination as a member of ODM-Kenya.”

But Justice Waki said that the claim would be subject to evidence given on oath after a PNU lawyer protested.