The Constitution, however, provides that the 28 days start running when the results are announced by the returning officer. A mathematical computation shows that Mr Peter Gichuki King’ara, the petitioner against Wambui, filed within the time allowed by the Elections Act, but six days late if time is computed by reference to the provision in the Constitution. However, in both the High Court and the Court of Appeal, the issue of the possible late filing had not been raised, and the petition was decided on other grounds. The computation of time first became an issue when the parties reached the Supreme Court and was the last of 12 grounds on which Wambui’s appeal was based. By then the court had decided a portion of the Shahbal v Joho petition, determining that time runs as provided in the Constitution and that the Elections Act, therefore, contravenes the Constitution. In the Wambui judgment, the Supreme Court addressed only this issue, finding as it had done in the Joho case, that the relevant provision in the Elections Act contravened the Constitution and was, therefore, void. By reference to the Constitution, King’ara’s petition in the High Court was filed late and was therefore incompetent. It is on this ground, and this ground only, that the court allowed Wambui back into the legislature. Having made a decision based on this technicality, the court found it superfluous to determine the other issues that had been raised in the petition. A reading of the judgment reveals little distinction between the approach by the Supreme Court and the former Court of Appeal. Both are courts of technicalities, and surprises. The judgment makes clear that the exclusion of the Odinga affidavit by the court, which has since been criticised, was not an aberration but part of the court’s doctrine to promote “predictability, certainty, uniformity and stability’. While King’ara demonstrated that he had a reasonable basis on which he computed time, by reliance on an Act of Parliament, this was not enough to save him. A troubling issue regarding this judgment is how the court handled King’ara’s own complaints regarding the computation of time in Wambui’s appeal. When the Court of Appeal decided against her, Wambui filed a notice of appeal in the Supreme Court, well within the 14 days allowed by the rules of the court. Thereafter, her legal team pursued an application in the Court of Appeal for leave to go to the Supreme Court, in the middle of which Munya’s appeal to the Supreme Court was admitted. Realizing that they could also have filed in the Supreme Court directly, rather than with the leave of the Court of Appeal, the Wambui team then filed the petition but by then the 30 days allowed for filing had elapsed and had been exceeded by 33 days. This issue was specifically raised during a preliminary hearing before Justices Kalpana Rawal and Mohammed Ibrahim, as King’ara had applied for the dismissal of the Wambui petition for late filing. The two judges dismissed the preliminary objection, holding that in the public interest, they had the discretion to allow Wambui to file late. However, King’ara himself found no such luck when Wambui raised the issue of time in relation to his filing at the High Court. King’ara’s legal team claims that they also raised the same issues of the late filing to counter her similar claims, when the main petition was heard. However, these are not reflected in the judgment of the court. It is difficult to understand how, towards one party, the court showed so much leniency when interpreting time, but was so strict to another party in the same proceedings. The uniformity that the court said it was promoting is not borne out by the differing treatment of Wambui and King’ara by the court, and leads to the conclusion that, in the Supreme Court, what is good for the goose is not necessarily good for the gander. While the Supreme Court was created as a stabilising factor for the country’s legal system, it is difficult to argue that it is having this effect so far. Like in the presidential petition where the court’s decision left many unanswered questions, it has done so in the Wambui petition as w
Posted on: Sat, 10 May 2014 09:52:16 +0000