Starehe parliamentary votes cast in the last General Election will now be recounted.
In a judgment made on Tuesday, the Appellate Court dismissed an application filed by Starehe MP Bishop Margaret Wanjiru saying it was filed out of time.
The MP, who is also Housing assistant, had moved to the highest court in the land in an attempt to stop the scrutiny of the ballot boxes and a recount of the votes cast in December 2007.
While agreeing with former area MP Maina Kamanda that the appeal was filed after the lapse of 30 days, three judges of appeal struck out Bishop Wanjiru’s application and ordered her to pay costs of the suit to her predecessor.
Judges Erastus Githinji, Alnashir Visram and Joseph Nyamu declined to be drawn into a dispute as to when the appeal was lodged at the court’s registry. According to Bishop Wanjiru, his lawyer presented the papers through a clerk in court on the last day but he was sent back because the records were incomplete.
And for sending the clerk away until the following day, it was Bishop Wanjiru’s contention that the registry was wrong and the appeal was lodged within time. The Judges said the dispute should have been brought before a single judge because it was an administrative issue.
Mr Kamanda had successfully convinced the trial judge to order the recount on September 22, 2008. The ruling was not received well by Bishop Wanjiru and she moved to the highest court in the land.
She temporarily stopped the recount after arguing her case before three judges of the Appellate Court. But as she argued the temporary stay, Bishop Wanjiru had not filed the appeal.
Explaining the delay, Bishop Wanjiru through lawyer Chacha Odera said the 30 day period given by the National Assembly and Presidential Elections Act was not enough given the voluminous document he was preparing.
The Interim Independent Electoral Commission said it was not opposed to the scrutiny of the ballot boxes and recount of the votes.
Bishop Wanjiru beat Mr Kamanda by 895 votes to win the Starehe seat. Before it was stopped, trial judge Kihara Kariuki had said the scrutiny of ballot boxes would be done on a daily basis.
Through his lawyer Kioko Kilukumi, Mr Kamanda argued that a recount was necessary because the ECK not only made mistakes, but also falsified forms 16A.
He said that from evidence given in court, it was clear that there were unauthorised alterations on Forms 16A and 17A.
The hearing before Justice Kariuki has meanwhile been going on with Bishop Wanjiru calling witnesses in her defence. So far, five witnesses have testified. The hearing continues Wednesday.