TRADE assistant minister Omingo Magara has only five days to save his South Mugirango seat, it has emerged. But he is walking a tightrope because this will only depend on the speed of the judiciary and interpretation of election laws.

Magara may evade a by-election if the Chief Justice Evan Gicheru appoints a three-judge bench before January 17. He needs the three appellate judges to stop the execution of the ruling last year by judge Daniel Musinga of Kisii who cancelled his 2007 election results. Last week, Magara's case - to block any processes that usually follow the sacking of an MP by a court - was declared urgent by the Court of Appeal. Appellate judge Joseph Nyamu approved the certificate of urgency saying a by-election wouldn't be unfair to Magara.

Justice Nyamu said if the appeal is successful, it would be pointless because the process of a by-election would have begun following the expiry of 30 days, as set in law, from the December 17 ruling.

The law requires that within 30 days of an MP's dismissal by a court, the Speaker declares the seat vacant. After this, an electoral commission can plan a by-election. "The applicant (Magara) has an arguable appeal and with high chances of success, on grounds that the judge (in Kisii) departed from pleadings and evidence to make a judgment outside the issues that arose in the "petition. The judge misunderstood... material facts of the case, adopted summary judgment and on an election petition and disregarded provisions of section. 28," the notice of motion reads.

In the case, Magara's lawyer Kitwa Kigen's had asked the court to find out the actual implications of Section 28 of the National Assembly and Presidential Elections Act. The act sets out guidelines and limits on MPs elections.

Kigen had also asked Justice Nyamu to find out if a judge can ignore pleadings in a petition and nullify elections, whether he or she has power to award summary judgment in an election petition and whether handling of non-statutory documents can be a basis to dismiss election.

Legal experts, who spoke on condition of anonymity because of the sensitivity of the appeal, said Magara case will be based on the question of form 16A. Form 16A is a document with entries of votes one gets in an election., A sworn statement to court by Magara says that Justice Musinga based his ruling on wrong facts.

It says the judge ruled that there were either 40 or 53 polling stations in which form 16A were not signed while in fact the proceedings had established that it was only six out of the 110 poling stations, where such forms were not signed by presiding officers.