Magara’s fate now lies with Chief Justice

By Maseme Machuka

Embattled Trade Assistant minister Omingo Magara’s fate in the Tenth Parliament lies with Chief Justice Evan Gicheru.

If he is to avoid a by-election in South Mugirango, his only hope is in the Court of Appeal, as the deadline ticks closer to the period National Assembly Speaker should issue writs declaring his seat vacant.

Unless the Chief Justice constitutes a three-judge Bench before January 17 to consider granting stay of execution and further proceedings arising from the Justice Daniel Musinga petition ruling, Magara would have to seek a fresh mandate. His lawyers filed an appeal, which was certified urgent by the Court of Appeal.

Magara’s lawyer Kitwa Kigen moved to the Court of Appeal last week where he sought and was granted a certificate of urgency in civil application.

Notice of motion

Mr Kigen’s notice of motion seeks to establish whether a judge can depart from pleadings in a petition and nullify elections, whether there is jurisdiction to award summary judgement in a petition, whether handling of non-statutory documents can be a basis to dismiss an election and scope, meaning and interpretation of Section 28 of the National Assembly and Presidential Elections Act.

"The applicant has an arguable appeal and with high chances of success on grounds inter alia, the judge departed from pleadings and evidence to make a judgement outside the issues that arose in the petition, the judge misunderstood, misapplied and misinterpreted material facts of the case, adopted summary judgement and on an election petition and disregarded provisions of Section 28, Cap 7," says the notice.

Magara’s affidavit says Justice Musinga based his ruling on erroneous facts that there were either 40 or 53 poling stations in which form 16A were not signed while the proceedings had established it was only six out of the 110 polling stations where such forms were not signed by presiding officers.

Kigen said the petitioner’s case was anchored on voter bribery, intimidation, voting by ‘dead’ voters, influencing election officials, allegations Justice Musinga dismissed during hearing.

Magara’s affidavit says the judge nullified the elections results by casting aspersions on the integrity of the votes cast.