Former South Mugirango MP Omingo Magara has written to House Speaker Kenneth Marende asking him to revoke the declaration that the seat is vacant. Mr Magara is hanging by a legal thread in the hope that the Speaker would set a precedent by putting aside his own decision to declare the seat vacant following an election petition loss.

Mr Magara is pleading with the Speaker to revoke the notice “so as to be fair to the law”. He is basing his argument on what he calls legal technicalities touching on voter registration in the constituency. He argues, through his lawyers Katwa and Kemboy Advocates that the Speaker should not have declared the seat vacant until the IIEC was fully prepared for the by-election. The lawyers claim Mr Speaker’s move could “jeopardise” IIEC’s preparations for the coming by-election.

On January 15, Mr Marende declared the seat vacant after Mr Magara lost an election petition on December 17. Kisii High Court Judge Daniel Musinga nullified the ODM politician’s election in favour of the petitioner Manson Nyamweya. The Speaker, said to be in Mombasa, was not available for comment, but IIEC chairman Isaack Hassan said it was Mr Magara’s fresh move that appeared to jeopardise the by-election.

Mr Hassan, speaking to the Sunday Nation by telephone on Friday, said although the commission was also waiting to hear from Mr Marende over the issues the former MP has raised, he believed the electoral body could not be stopped from conducting fresh registration as well as speeding up the by-election.

When he declared the seat vacant, the Speaker gave the IIEC two months, from January 18 to prepare for the by-election. It must be held at the end of April, which is within the mandatory 60 days from the date the seat was declared vacant. Mr Marende made the move three days after he had written to Mr Magara’s lawyers saying he was “giving due attention to all the issues” they had raised in an earlier letter to him dated January 11.

The lawyers had requested that the Speaker, even as he declared the seat vacant, should start counting the 60 days within which a by-election should be held, from January 6, 2010. They argued after Mr Magara’s election was nullified, the outgoing MP soon lodged an appeal that sought to bar the Speaker from declaring the seat vacant. But, the lawyers argued, the matter could not move as the Court of Appeal had been on vacation until January 6.

In the letter dated January 18, Mr Magara’s lawyers argue the Speaker should have first allowed the IIEC to prepare for the by-election before declaring the seat vacant. Should Mr Magara or any other candidate win, the outcome could still be challenged in court over alleged anomalies touching on voter registration in the constituency.

“We request that you allow us to petition you to revoke Gazette Notice so as to be fair to the law, the constituents of South Mugirango (together with their Parliamentary candidates) to the National Assembly and to your esteemed office,” Mr Kigen says in the letter copied to the IIEC and Attorney-General Amos Wako. Mr Magara’s lawyers argue the Speaker’s declaration should have come only after the IIEC was fully prepared for the by-election and not the other way round.

They base their argument on Section 4 A (I) (d) of the National Assembly and Presidential Elections Act Chapter 7, which states: “Registration of electors and revision under this Act may be carried out at all times except in the case of any by-election between the date of the declaration of the vacancy of the seat concerned and the date of such by-election.”

They claim Mr Marende’s action has four major effects, including “barring the electoral body from facilitating the proper organisation and holding of the elections as intended.”

The Speaker’s action, they claim, could “create a lacuna as to the parliamentary representation for the residents of South Mugirango.” The move, they add, was as good as “condemning the people of South Mugirango to pay taxes without representation for a period of extension under section 13 (2), Cap 7, and for all the period of the resulting legal quagmire.” But IIEC boss Mr Hassan said Mr Marende’s move would not affect the commission’s preparations for the coming by-election. In any case, he said, it was Mr Magara and his lawyers who appeared out to derail the process.

And speaking separately, two IIEC commissioners – Winnie Guchu and Tiyah Galgalo – said registration in South Mugirango would be monitored strictly to prevent cases of potential voters flocking the constituency for the purpose of only voting before leaving the area.

They said the commission would use old voter registers for references only to help identify genuine Mugirango constituents. The two spoke to the Sunday Nation on the sidelines of a training workshop for 210 constituency election coordinators at the Multimedia University College in Nairobi.