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Nyeri governor to know his fate in September

23 August 2013, 12:20 Wangui Joseph

Nyeri - The governorship of Nyeri governor, Nderitu Gachagua, is at stake pending a major judgment in regard to a petition challenging his election.

Gachagua suffered a blow on Thursday after court of appeal rejected an application he had made to have the petition dismissed and struck out.

The suit was filed by a poll loser Thuo Mathenge who named Gachagua, the electoral commission and the County Returning Officer Peter Wanjohi as respondents in the petition.

The Appellate court ruled that the petition should proceed before Justice James Wakiaga who scheduled for the ruling on September 9, 2013 after both parties make their final submissions.

The judgment will equally determine Gachagua’s fate as the County governor and the way forward for Nyeri electorates on whether they will head to a by election or not.

While dismissing the application, a three-bench judge presided over by Alnasir Visram, Martha Koome and Otieno Odek found that the High court judge had jurisdiction to listen to the case though it was filed before gazettement of the gubernatorial results.

Initially, the court dismissed Gachagua’s prayer in June urging the court to strike out the petition and be granted the costs incurred in the proceedings by then.

According to him, the petition was supposed to be dismissed on grounds that it was filed before the stipulated time by the constitution and was therefore defective.

He argued that the petition would have been filed after gazettement of the results but Thuo reacted to a verbal announcement by the Returning Officer which he said would have changed.

“It is only through gazettement that a candidate is constitutionally recognised as a holder of a particular office. Therefore, the petition was filed against a person who had not been recognised in law as the holder of the Nyeri Governor’s office,” he said.

However, the court of appeal said that Thuo Mathenge filed the petition on March 8, five days before the gazettement as he complained of multiple election malpractices.

Thuo decried that the misprint of his running mate’s name left him no alternative but file the petition with a view to block the gazettement, according to the ruling.

It was during the submissions that the electoral commission’s lawyer, Hiram Gachugi, submitted that Thuo Mathenge would have filed the complaints to the commission which until the gazettement had jurisdiction.

However, the bench found that the High court had jurisdiction to listen to an election petition at that time. They therefore ruled that the court had authority to entertain the election suit.

“A petition cannot be dismissed because it was filed early as the time frame requirements were put in place by the constitution so as to prevent those filing petitions late from being heard,” said the bench, noting that an election petition is supposed to be filed within a 28-day timeframe after the gazettement of the results.

Gachagua had appealed to the court to change a ruling made by High court judge Justice James Wakiaga who decided the petition should move to full trial.

Through lawyer Njoroge Regeru, Gachagua had argued that the petition was filed prematurely as it was filed after the announcement of results by the County Returning Officer.

He said those were just provisional results while the final announcement and declaration of the winner was done through the gazzettement.

Thuo Mathenge, through lawyer Kioko Kilukumi, however told the bench that time begins to run immediately the County Returning Officer announces the final results at the county headquarters.

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