Two senators with disabilities have appealed against a ruling which struck out their nomination.
Mr Harold Kipchumba and Ms Linet Kemunto want the Court of Appeal to overturn the decision by Lady Justice Rose Ougo, arguing that the judge was partial and reached the verdict based on wrong principles of the law.
Through lawyer Evans Ondieki, they submitted that the judge made a mistake by taking the place of the electoral commission and ordering that their nomination as senators be nullified and that of their rivals be gazetted.
“The judge misapprehended the facts, applied wrong legal principles and drew wrong inferences to the prejudice of the applicants. The judge lacked doctrinal coherence and consistency by delivering two different judgments in two cases with striking similarities,” said Mr Ondieki.
Judge Ougo last Friday revoked the nomination of Mr Kipchumba and Ms Kemunto and ordered the electoral commission to gazette Mr Ben Njoroge and Ms Goldliver Omondi as the duly nominated senators to represent disabled persons.
In her judgment, Judge Ougo said that the IEBC had no mandate to substitute the names of nominees listed first with those listed after them.
Ms Kemunto, who is blind, was nominated by TNA. She was listed behind Mr Njoroge in the party.
Mr Kipchumba is physically disabled and was nominated by ODM. He was behind Ms Omondi in the list of nominees.
The judgment was however a contradiction of a similar one she delivered on the same day, upholding the nomination of Ms Naisula Lesuuda as senator, yet her name was behind Ms Lydia Mathia’s.
Ms Mathia had told the court that her name was ahead of Ms Lesuuda’s on the list.