KENYA: Lawyers in an election petition challenging the election of Budalangi MP Ababu Namwambadiffered over reliance on Supreme Court ruling on the outcome of the March 4 polls.
Lawyers Katwa Kigen (left) and Ashford Muriuki yesterday as they prepared to make final submissions before Busia Resident Judge Francis Tuiyott in a petition challenging the election of Budalangi MP Ababu Namwamba. PHOTO: Renson Buluma/STANDARD
CORD leader Raila Odinga in the petition challenged election of President Uhuru Kenyatta.
Lawyers Ashford Muriuki representing petitioner Henry Nadimo and Katwa Kigen for Namwamba sharply differed over the Mutunga ruling, with Muriuki saying the verdict should not be used as an authority in determining other election petitions.
Muriuki told Busia Resident Judge Francis Tuiyott during his submission that courts needed to apply own standards of determining petitions according to evidence provided and not use the Raila case.
“My lord, it is worth to note that the Supreme Courtdecision was the most controversial verdict ever given by any court in the history of this country and it has left millions of people complaining,” said Muriuki.
He added: “The Raila case is being used everywhere and in some cases judges are now saying their hands are tied when it comes to the interpretation of evidence”.
Muriuki noted threshold of burden of proof in a petition should be above balance of probability but not as high as beyond reasonable doubt.
Justice Tuiyott agreed with him when he noted that claims of bribery are at times difficult to prove because they are carried out in secret.
“Bribery is like adultery, which is acted in secrecy and it’s very difficult to determine. Only God can prove beyond doubt that one has indulged in the act,” observed the judge
However, Kigen in his submission said courts are bound by same rules, therefore, the standard of proof used by the Supreme Court in determining the presidential petition should be applied across the board.
“This court is discharging judicial practice and, therefore, should abide by the national values and principles like those that bound the Supreme Court,” said Kigen.
Cross-examination
He asked the court to dismiss the petition with costs citing various technicalities that included evidence by some witnesses whose affidavits were commissioned by ‘unqualified commissioners’.
But Muriuki said the court cannot dismiss evidence of such witness on trivial technicality especially after the witnesses appeared before the court for cross-examination.
“If we strike out the evidence, we shall be abusing the authority of the court, which has already taken evidence of over 20 witnesses. The best evidence is one given orally and an affidavit is just but a guide. It will be unfair to the petitioner if the court struck out the evidence because there will be no remedy,” said Muriuki.
Namwamba’s election is being contested on allegations that it was marred with malpractices and that it was not free and fair. The petitioner, a voter in the constituency, claims that voters were intimidated, bribed, double voted and unregistered voters were allowed to vote while rights of those assisted were infringed.
Nadimo also accused electoral officials of being partisan, claiming that some presiding officers attended a meeting at Mulukoba resort that was addressed by ODM politicians, including Namwamba.
Ruling will be made before October 2.
By Renson Buluma, The Standard
