Court to rule Thursday on second case against promulgation - Daily Nation

Court to rule Thursday on second case against promulgation

Wednesday August 25 2010

Will the promulgation of the new Constitution be stopped 24 hours to the planned August 27 date?

Well the answer to this question will be known Wednesday morning when the Interim Dispute Resolution Court gives its ruling in a case filed by two people challenging the promulgation.

The case by Ms Mary Ariviza an agent for 'No’ and Mr Okotch Mondoh is the second to be filed since August 18th seeking to halt the plans to bring into effect the new Constitution on August 27.

The first one was filed before High Court and was dismissed on Tuesday on grounds that it was before the wrong forum.

On Wednesday, making submission’s before five judge bench the two through lawyer Judy Madahana sought for an order to suspend gazette notice dated August 20 which published the final results of August 4 referendum.

She says the gazette notice was published after she had filed her case challenging the results of referendum and its conduct.

Under the law, she said, if complaint is made before court in relation to conduct and result of referendum the gazette notice ought not to be published until the matter is heard and determined.
And in the event the court declines to give her the orders seeking to suspend the gazette notice and promulgation, then her case will be overtaken by events.

“If promulgation is allowed the petition will be rendered nugatory and my clients will be left without any remedy,” the lawyer told the judges.

She strongly urged the court to suspend the gazette notice to avoid a situation which would amount to the two having laboured in vain.

The court was asked to find decision by the Interim independent electoral commission to publish the final results of referendum to amount to engaging in an illegality when a case is pending in court.

In its response the electoral commission said as far as it is concerned there was no case pending before court as at August 20th when it published the final results of referendum because they were not served with any suit papers.

And because of this reason the case before the court lacks valid grounds and ought to be dismissed on that ground alone.

The case, the IIEC said, has been overtaken by events and this situation was occasioned by the conduct of the two.

“The petition has been overtaken by events, this events are of petitioners making. Had they followed the law diligently and served their suit papers on us, neither the certificate of final results nor the promulgation date would have come into existence,” said lawyer Pheroze Nowrojee representing IIEC.

The attorney-general agreed with the arguments of IIEC on why the case should not be entertained.

State counsel Wanjiku Mbiyu further added that the case should be dismissed because the two have not deposited the required security of Sh2 million in court and their time limit within which to do that has lapsed.

Under the law, one who is challenging the constitution is required to deposit Sh2 million as security in court within seven days of filing such a case.

The court will give its verdict Thursday morning.