The High Court in Kakamega has refused to lift orders barring the electoral body from gazetting Senator Cleophas Malala from vying for the county’s governor seat.
Justice Patrick Otieno also allowed a case questioning the validity of the senator’s academic qualifications to go on as he looks for votes against six other contestants for the Kakamega governorship seat.
" I consider it a grave matter to tinker with the right of the petitioner (Malala) vying even as the timeline for gazettement is elapsing today. The IEBC timelines are not in the law. The Commission can manipulate the gazettement under section 109 of the Elections Act," said Otieno who placed the hearing of the case filed to bar the senator from vying arguing that his academic papers were fraudulent on Monday.
Justice Otieno on June 6 barred the Independent Electoral and Boundaries Commission (IEBC) from gazetting the first-time senator after two Kakamega voters Fred Muka and Franklin Shilingi, filed a petition seeking to bar the senator from vying because "he possesses questionable academic papers”.
Malala on Thursday afternoon prayed that the judge lifts the orders fearing that if he fails, he (Malala) would be locked out from vying for the August 9 polls without the proof he indeed had fake academic credentials as the case on the same had not been determined.
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"I bring to the court's attention that Friday will be the last date for IEBC to gazette candidates to vie in this year's elections. I, therefore, request the court to revisit its earlier orders because if left standing, they will lock out Malala from the ballot denying him the right to contest," said the senator through his lawyer, Charles Malala.
"Importantly so, the petitioners' concerns can as well be dealt with during the election cycle and also in a subsequent election petition if Malala bags the governorship, so they (petitioners) don't lose their right to be heard."
The senator was quick to urge the court to balance his right to vie and that of the petitioners to be heard, even as the duo (petitioners) insist the senator must not vie until his papers are first verified.
The petitioners say the 37-year-old senator and former MCA is ineligible to vie as he never graduated with a degree from United States International University Africa (USIU) and should be stopped from contesting for failing to meet the requirement of having a degree to vie for the governorship.
“While Malala alleges that he graduated from USIU in 2011, his degree certificate was printed and issued to him on August 10, 2019. This is eight years after the purported graduation, yet ordinarily, the date on a degree certificate is the day a person graduates from an institution,” they say in their petition.
“A look at USIU’s graduation list for 2011 shows that Malala did not feature among the graduates, nor did his name feature in the graduation list for 2019.”
They cite Section 22 (2) of the Election Act which dictates that "for a person to be validly nominated and thereafter cleared by the electoral commission to vie for the position of the governor, he or she must be a holder of a degree certificate from an Institution duly recognised in Kenya."
The petitioners also say the validity and legitimacy of Malala’s Kenya Certificate for Secondary Education (KCSE) certificate is in dispute, “as it displays a different KNEC code from the official code issued to Friends School Kamusinga” where the senator says he sat his KCSE exam.
The duo wants the court to bar Malala from vying, noting the governor position was of high esteem and that residents of Kakamega need a leader who is qualified by the law to hold such high public office.
The judge on Thursday also dismissed with costs a preliminary objection by the IEBC wanting it to throw out the petition by the two voters.
The electoral body had argued that the duo ought to have sought an audience with the Commission's tribunal before going to court. They (IEBC) also questioned the court's eligibility of hearing the constitutional petition.
