Kwale Governor Salim Mvurya got a reprieve after a petition filed by a voter challenging his election was struck out Thursday.
Justice Mugure Thande said failure to enjoin deputy governor Ms Fatma Achani in the proceedings and failure to comply with mandatory requirements of Election Petition Rules rendered the petition filed by a voter, Mr Mwamlole Tchappu Mbwana, incurably defective.
“To proceed to hear this petition without notice or the participation of the deputy governor is to go against the principles of natural justice,” said Justice Thande.
DEPUTY GOVERNOR
Justice Thande said the deputy governor is a necessary party in an election petition that seeks the nullification of the election of a governor.
“I am therefore not persuaded by the argument that the deputy governor is merely nominated and not elected,” said Justice Thande.
She noted that when the deputy governor was declared elected, took and assumed office, certain rights accrued to her hence they (rights) cannot be taken away without giving her an opportunity to defend herself.
The judge, who also awarded Sh2.5 million costs to Mr Mvurya and other respondents, said non-joinder of the deputy governor rendered the petition incompetent and incurably defective.
She said that in the promulgation of the Constitution, people were emphatic in Article 180 (6) that the candidate nominated by a person elected as governor shall be declared to have been elected as the deputy governor.
NOT PARTY
Justice Thande said that as the law stands, the deputy governor cannot legally be expected to vacate office on the basis of an order made in proceedings of which she had no notice, was not a party and on the basis of an order not directed at her.
She also ruled that the petition was incompetent for not having stated the date of declaration of the election.
“By proceeding with a petition in which the date of the declaration of the results and the results have not been pleaded, this court will run the risk of abandoning its role as an independent and impartial arbiter,” said Justice Thande.
The judge said it is evident that there are gaps in the provisions relating to the deputy governor in the Constitution and even in the County Governments Act.
AMEND ACT
“Perhaps it is timer that Parliament considers amending the County Governments Act to plug the gaps identified,” said Justice Thande.
Through his lawyer William Mogaka, Mr Mvurya had raised a preliminary objection to the petition arguing that failure to enjoin his deputy rendered the petition incompetent and was a violation of Ms Achani’s rights to fair hearing.
In the petition, Mr Mbwana wanted the court to determine that Mr Mvurya was not duly elected and that the election was void.
The petitioner also wanted the Independent Electoral and Boundaries Commission (IEBC) ordered to conduct a fresh election in strict conformity with the constitution.
Mr Mbwana argued that the governor’s election was badly conducted and marred with irregularities such that it does not matter who won or was declared the winner.
-nation.co.ke
