Eyes on courts as appellate judges reverse rulings

The Court of Appeal is racing against time to conclude the hearing of election petitions.

According to the law, an appeal must be heard and determined within six months from the date of the High Court judgment.

Dissatisfied petitioners must file their appeals within 30 days from the date of the judgment and a notice of appeal stays the execution of any judgment, decree, order or direction from the High Court pending the determination of the appeal. Save for certain circumstances, the hearing should be held daily until its conclusion.

But as the court clears the petitions, seven of the cases stand out after the appellate court overturned decisions of the High Court.

INTERNAL WAR

A similar scenario played out after the 2013 General Election, when rulings created the impression that there was an internal war in the Judiciary between the Supreme Court and the Court of Appeal.

This was after the country’s apex court overturned several decisions of the appellate court, even where the judgments were viewed as sound.

Then, the Supreme Court reinstated about 10 MPs and governors, whose election had been nullified by the Court of Appeal, creating animosity among judges of the two courts.

Among leaders who rushed to the Supreme Court and got their way were former governors Nathif Jama of Garissa, Peter Munya of Meru and Migori’s Okoth Obado.

There were several MPs including Fred Outa (Nyando) and Othaya’s Mary Wambui, who also continued serving courtesy of the Supreme Court.

LAWYERS DISAGREE

But in the current cases, lawyers disagree, saying in some decisions the Court of Appeal judges were correct in reversing the judgment issued by the High Court.

Lawyer Nelson Havi said there are instances where High Court judges were “overzealous” and appeared to play to the political gallery by sending some MPs home.

“In my view, there are particular cases where the decisions of the Court of Appeal were merited,” he said. The lawyer cited the cases against Embakasi East MP Paul Ongili, also known as Babu Owino, Marakwet East MP Kangogo Bowen and Alfred Keter (Nandi Hills). The appellate court also overturned a decision to nullify the election of Turkana Woman Representative Joyce Emanikor.

“It was clear that some MPs had been marked for the political dustbin and some judges played along. In such instances, the appellate court was justified in overturning those decisions,” he said adding that in other cases, it could just be a coincidence.

The Court of Appeal has nullified the elections of Machakos Governor Alfred Mutua, Lamu Senator Anwar Loitiptip and Embakasi South MP Julius Mawathe. The High Court had cleared all the three leaders, but the petitioners appealed.

MISAPPLIED LAW

Dr Mutua’s lawyer Wilfred Nyamu said the appellate judges “totally misunderstood the case and misapplied the law”. According to the lawyer, if not challenged, the decision will set a bad precedent because “a loser will just talk nicely to the returning officer and the election will be nullified”.

The appellate court declared Dr Mutua’s election null because the returning officer announced the results using the wrong form. The judges said the results were illegal and cannot be verified.

Dr Mutua has since moved to the Supreme Court, faulting judges William Ouko, Mohamed Warsame and Gatembu Kairu, saying they erred in law.

While nullifying the election of Mr Mawathe, justices Warsame, Asike-Makhandia and Otieno Odek said the trial court erred and failed to find that the evidential burden had shifted and the allegations made by the petitioner Irshad Sumra were not satisfactorily answered.

The judges said the electoral commission failed to fully and candidly discharge its duty by bringing all evidence in its possession to enable the court to decide the petition.

CAUTIOUS

Mr Nyamu said the court should be very cautious and not void an election where the trial judge has had the benefit of listening to witnesses and analysed the evidence correctly.

Mr Philip Nyachoti, who has successfully argued several cases both before the High Court and the Court of Appeal, does not think there is a tiff between the two courts.

According to him, with the pressure of finalising the cases within six months, some judges are bound to make mistakes and which will be corrected by the Court of Appeal.

“Some judges handle between two and three cases. There are also new election rules and some issues have not been settled fully. Therefore, errors are bound to occur. But where principles have been settled clearly, judges have no problem reaching a decision,” he said.

SUSPICION

Mr Lempaa Suiyanka echoed Mr Havi’s sentiments saying it could be a coincidence in some cases, but where there is an indiscernible trend, then litigants have a reasonable suspicion to believe that the two courts are engaging in battles of egos.

Justices Erastus Githinji, Hannah Okwengu and Jamila Mohammed gave Mr Keter a political lifeline, saying claims that the MP campaigned beyond the stipulated period were not proved.

Mr Bernard Kitur claimed the MP campaigned until the eve of the election.