Kethi to know her fate in poll case on Friday

Ms Kethi Kilonzo will on Friday know if her name will be on the ballot for the Makueni Senate by-election slated for June 26.

Tuesday, her lawyers, led by Mr James Orengo, put up a spirited fight for her to be cleared to run for the seat left vacant by the death of her father, Mutula Kilonzo, on April 27.

A tribunal set up by the Independent Electoral and Boundaries Commission (IEBC) had last week ruled that Ms Kilonzo was not a registered voter and could, therefore, not vie for the seat despite being nominated by the Wiper Democratic Party.

The decision on whether Ms Kilonzo will be cleared to vie now lies in the hands of Justices Richard Mwongo, Weldon Korir and Mumbi Ngugi.

Her lawyers said that the IEBC dispute resolution committee had no mandate to determine the dispute over her registration as a voter.

“There was no fair hearing or due process by the committee since in determining the eligibility of Ms Kilonzo, they acted both as the accused, prosecutor, judge and executioner,” said Mr Orengo, who is also the Senator for Siaya. “The commission was basically defending itself against allegations that it had cleared an ineligible candidate.”

He argued that there was no way IEBC could sit and render a judgment in proceedings in which its conduct was being questioned.

“A look at the complaints before the committee proves that they were a direct attack on the IEBC. Their action was like a thief giving someone money then going ahead to determine how the money is to be shared out,” said Mr Orengo.

Another lawyer, Mr Tom Kajwang’, argued that the revocation of Ms Kilonzo’s candidature denied the Wiper Democratic Party the right to field a candidate in any election and if not overturned, the party’s supporters would be prejudiced by being denied the chance to elect a leader of their choice.

“How does an innocent party suffer a default of law because of circumstances unknown to them?” Mr Kajwang’ asked. “If the commission knew Ms Kilonzo’s documents were not genuine then they would have declined to give her the nomination certificate.”

Another lawyer, Ms Julie Soweto, submitted that Ms Kilonzo duly applied to be registered as a voter and was issued with the acknowledgment slip. She accused the commission of colluding with Ms Kilonzo’s competitors to deny her the chance of succeeding her father.

“A man cannot be judge on his own case like the IEBC which had its own cake and ate it,” said Soweto.

Defended the decision

In its submissions, the electoral commission defended the decision of its tribunal, arguing that it was based on the evidence placed before it and did not act in bad faith.

Through lawyers Paul Nyamodi, Kimani Muhoro and Mahat Somane, the commission argued that the returning officer was independent and that his decision was subject to a review by the tribunal.

“It is not true the tribunal had no jurisdiction to determine questions regarding registration as a voter. It did not sit as a judge in its own case but reviewing a decision of an independent office of the returning officer,” said Mr Nyamodi.

The lawyer also denied claims that the tribunal conducted its proceedings by way of an ambush. He said each party was given sufficient time to scrutinise the evidence and cross-examine the witnesses.

Mr Somane said the case was based on false assumptions since there could be no legitimate expectation regarding enforcement of the Constitution and electoral laws.

“The duty of the IEBC was to provide all the material it deemed fit to reach an informed decision which was made in good faith, with caution and with due diligence of the law,” he said.

Mr Muhoro said that the acknowledgment slip Ms Kilonzo presented to get the nomination certificate had no relevance and since there was a dispute on how she got it, it could not be enough to prove her registration as a voter.