The Bomachoge parliamentary by-election slated for Thursday will go on after all.

This follows a decision by High Court judge Mr Justice Leonard Njagi dismissing a case seeking to stop the by-election.

Dismissing the case filed by one of the parliamentary aspirants Mr Ferdinand Ondabu Obure the judge said the matter came to court too late in the day and now that the election materials are ready it would be unfair to stop the exercise.

Secondly, the judge said the stopping of the election will deny the Bomachoge constituents right to representation in parliament.

His ruling arose of an application by Mr Obure and Mr Richard Kalembe Ndile of the Tip party. The two asked the court to stop the by-election until their case is heard and determined.

The two went to court to seek its intervention after Mr Obure’s nomination papers were declared invalid, hence stopping him from participating in the poll.

The papers were cancelled because they lacked specimen signatures for authorised officials of the political party sponsoring him.

But according to Mr Obure, the reason given was illegal and unfair because he was not allowed to defend himself. He also says the decision denies him his right to vie for a parliamentary seat as a citizen.

Mr Obure says the returning officer failed to even indicate the reasons for cancelling his nomination papers in writing as required by law.

Secondly, he said, IIEC did not even give him audience after the cancellation of his nomination papers.

And on its part, the IIEC has asked the court to dismiss the case by Mr Obure because of various legal reasons.

First, it says the court lacks jurisdiction to deal with the matter. This is because the court before which the case has been filed is not an election court and yet the matter before it is a political one.

According to the commission, Mr Obure will still have remedy even after the elections are held because he can come back to court and seek for the nullification of the results and therefore there is no point in stopping the exercise.

Secondly, the IIEC says that even if Mr Obure had a case he came to court very late in the day when all the ballot papers have been printed and millions of shillings used into preparations so it will be unfair if court gave him orders halting the elections.

The judge ruled that the court has jurisdiction to deal with the case because it is not an election petition.

He disagreed with the IIEC’s argument that such a case can only be handled by an election court appointed specifically by the Chief Justice.

The judge held that election courts normally deal with election petitions challenging either an MP’s election or presidential results and in the case before him the exercise itself hasn’t been conducted.

The case is the first major challenge the Interim Independent Electoral Commission (IIEC) has faced as it is the first ever election it is supervising after its formation following the disbandment of Electoral Commission of Kenya.

The Electoral Commission of Kenya was disbanded following disputed presidential results of 2007 general elections.