Appeal court upholds Lesuuda's nomination

The Court of Appeal Wednesday upheld former journalist Naisula Lesuuda’s nomination to the Senate by The National Alliance Party.

Ms Lesuuda’s counterpart, Ms Lydia Mathia had moved to the Appellate Court after High Court judge Rose Ougo dismissed the petition and upheld the power of the Independent Electoral and Boundaries Commission to alter party list after the elections for the purpose of meeting Constitutional and legislation requirements.

And for the second time, Justice Kathurima M’inoti dismissed Ms Mathia’s appeal and also upheld IEBC decision in a ruling he delivered on behalf of the five judge bench comprising of Judges Erastus Githinji, Mohammed Warsame, George Kariuki, Daniel Musinga and himself who heard and determined the case.

The judges ruled that IEBC was right to replace Ms Mathia even though it had no right to alter the party list and TNA had not met the required standard but the electoral body could not escape ensuring party’s meet ethnic representation appropriately.

“Ultimately we find that in the circumstances of this appeal, the IEBC was justified in replacing the name of Ms Mathia with that of Ms Lesuuda for the sole purpose of satisfying requirements of Article 98 of the Constitution necessitating representation of marginalised communities in light of the admitted failure by TNA to meet that requirement,” Justice M’inoti said.

According to Ms Mathia, having been listed as number three in a list of 16 Senate Women members in the TNA’s four seats, she automatically stood elected after the March 4, 2013 General Elections and neither her political party nor the IEBC could reverse her election.

Ms Lesuuda was number five in the party list but IEBC substituted Ms Mathia with her on grounds that the former journalist hails from a relatively small community and hence designated her as TNA’s second elected Senator in order to achieve proper ethnic and regional balance.

IEBC held that Ms Mathia together with two others in the list who were Beth Mugo and Emma Mbura Gertrude belong to one of the largest community in the country, Kikuyu, while Ms Lesuuda, a Samburu is a member of one of the smallest community and Ms Joy Odhiambo Gwendo, a Mijikenda.

Out of the four TNA women nominated seats, it meant that two would have come from the same community although representing different regions hence the need for the substitution and IEBC’s altering and publishing Lesuuda’s nomination on March 20, 2013.

Ms Mathia first lost her bid to be a declared as the one validly nominated and elected as TNA Senator instead of Ms Lesuuda on September 27, 2013.

Whilst Mathia moved to the Court of Appeal Ms Lesuuda lodged a cross appeal challenging the refusal by the High Court to award her costs of the petition.

Ms Mathia requested that a five bench judge be set up to hear the case arguing that it raised important issues regarding IEBC’s mandate.

But the bench yet again dismissed Mathia’s appeal and directed that each of them to bear their own legal costs.