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Kitutu Masaba election petition hearing today

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Published on Tuesday, 24 May 2011 19:44

The election petition against Kitutu Masaba MP Walter Nyambati recommences today at the High Court in Kisii. The commencement comes three weeks after the court disallowed an application seeking partial scrutiny of the ballot boxes filed by the petitioner Justus Omiti.

In rejecting the application on April 14,  Judge Milton Makhandia said whether or not to order for scrutiny, partial or full it was an exercise of discretion by the election court  

Justice Makhandia said he was not satisfied that proper materials were placed before him to order for partial scrutiny as requested by Omiti. “I reject the request to have partial scrutiny by the petitioner because no proper grounds or material were put before me to grant it. The application is turned down by now and costs shall be in cause,” Justice Makhandia ruled.

The Judge said in his ruling that such an exercise can  be ordered as rightly submitted by the petitioner’s lawyer Otiende Amollo if it was to  ascertain that there were  election materials in the ballot boxes which never pertain to the petition at hand. “For partial scrutiny to be ordered, the basis must be laid for the application to be granted on that basis. None of the eight witnesses who adduced evidence said that there were foreign votes introduced in the ballot boxes,” Justice Makhandia said in his 22 page ruling.

The Judge said that from the petitioner’s questioning by the respondents, it looked that his capacity to file the case was also in contention. “I do not think that in such a situation ordering for partial scrutiny will serve any meaningful reason,” he added.

It must be apparent Makhandia said he was toying with the idea whether or not to dismiss the petitioner’s application for partial scrutiny saying that whether or not he directed for partial or full scrutiny it was the discretion by the election court.

He said that it was important for all parties to be given an opportunity to give their evidence before partial scrutiny is ordered.“The court should get evidence from both parties before it can allow an application for scrutiny. The scrutiny can be ordered at any stage of the proceedings,” he said.

Following the ruling, Nyambati or Sempele is likely to take to the dock to give his evidence before other witnesses are called. The hearing is expected to run from May 9-19 when the court will decide whether to extend or not depending on how the matter moves. The case has dragged in court since 2008