Confusion hits election date appeal

Confusion reigned in the Court of Appeal on Tuesday over the handling of a case against a Constitutional Court ruling on the date of the general elections. (READ: Court: Kenya set for 2013 poll unless coalition dissolved)

While civil society organisations that challenged the ruling wanted the application heard, other parties objected to the jurisdiction of the court, saying their preliminary objections should be heard first.

Appellate court judges Justices Samuel Bosire, Erastus Githinji and Kalpana Rawal declined to hear the case, citing what they called legal technicalities. They directed the parties to exchange submissions and wait for directions from a new bench.

Kilome MP John Harun Mwau filed a preliminary objection saying, the application is an abuse of the court process as it violates Articles 164 and 165 of the Constitution.

Authority to appeal

His lawyer, Mr Ian Maina, said the Court of Appeal cannot hear an original cause of action at the appellate stage and that the two appellants had not demonstrated that they had the authority to appeal the ruling.

“The appellants lack locus standi to appeal against the decision as they were not party to the proceedings. The application is also not supported by the necessary documents,” he said.

Mr Mwau submitted that he was wrongfully enjoined as a respondent in the appeal, and that being the first petitioner in the High Court case, there was no justifiable reason to enjoin him.

However, the preliminary objection was contested by lawyer Stephen Mwenesi, who said the matter was of great public interest and the court should determine the appeal expeditiously.