Blow for Malava MP petitioner after court strikes out crucial paragraphs in affidavit
A petitioner seeking to nullify the election of Malava MP Malulu Injendi suffered a big blow Friday after the High court struck out several paragraphs in the case on grounds that the information was illegally obtained.
Judge Janet Mulwa, however, said the petition against Injendi will proceed to full hearing saying she was not persuaded to strike out the petition in its entirety.
“Not all evidence in support of the petition and as seen from the witness affidavits was illegally obtained through commission of an election offence,” the judge ruled.
The petition was filed by Gilphine Mokeita Omwega on grounds that there were massive illegalities and that the MP was not fairly elected to represent the people of Malava.
But Malulu, in an application dated November 16, had sought to strike out the petition saying it is founded on an illegality on the part of the petitioner.
The MP, through lawyer Stephen Luseno, argued that Mokeita cannot derive benefit from a wrong and neither can she sustain the proceedings on the face of an admitted commission of electoral offence.
Malulu told the court that Mokeita illegally accessed various polling stations to assess the general conduct of the election.
“She allegedly presented herself as the spouse of a candidate in August 8 election at the tallying center at Malava Boys High School where she accessed the conduct of the tallying of the results up to the time the constituency results were announced.”
The MP had argued that her duty in respect of the election was limited to accessing the polling station where she was registered to vote, cast her vote and stay away within a 400-metre radius as ordered before the poll.
“But she went ahead to record results as they were being announced by the returning officer,” the MP avers in his application.
In her ruling, justice Mulwa held that the petitioner did unlawfully and illegally access restricted areas without permission and authority of the IEBC, hence committed an election offence.
“The evidence is tainted with illegality and the court cannot shut its eyes to such. For this reason, the above paragraphs in her affidavits are hereby struck out.”