NO CONJUGAL RIGHTS, I WANT TO GO TO COURT

Dear Harold,

I was forced to resort to sex toys nine months ago after my husband of five years consistently denied me conjugal rights. We have a son and daughter who are below five years old, and it depresses me that matters of the bedroom has torn our young family apart. I am also on the verge of depression as my husband makes me feel unattractive. He even says he has no problem with me using vibrators. I have tried talking to him to open up if he may be having an affair as our matrimonial bed has no life. Is it possible to go to court and demand my conjugal rights or should I seek a divorce?

Laura, Nairobi

Dear Laura,

The court cannot grant orders to compel a spouse to perform conjugal responsibilities in the bedroom. It would be better to consider seeking professional assistance from a qualified marriage counselor. Divorce or separation are legal options as family law acknowledges denial of sexual intercourse among spouses as cruelty — a ground to end marriage, according to precedence set by the English case of Sheldon vs. Sheldon in 1966. In the case, the court granted a wife orders to divorce her husband for consistently denying her conjugal rights, which amounted to cruelty. According to Lord Denning — the judge in the case — the persistent refusal of sexual intercourse by the husband for long without excuse caused grave injury to the health of his wife. The judge said that spouses both have rights and responsibilities that should be fulfilled in matrimony. Local courts can apply such landmark judgments by courts in Commonwealth countries.

Got a family related legal issue? Ask the lawyer on hayodo@standardmedia.co.ke

 

ICC PROSECUTOR ALLOWED TO AMEND UHURU CHARGES

The Pre-Trial Chamber of the International Criminal Court (ICC) has allowed the prosecutor to amend charges facing president-elect Uhuru Kenyatta. Pre-Trial judge Ekaterina Trendafilova granted Fatou Bensouda permission to add charges to state that “victims were also killed by gunshot in Naivasha.”

“Thus, from an evidentiary perspective, the prosecutor has fulfilled her statutory duty by presenting evidence which supports her allegation that victims were also killed by gunshot in Naivasha. Suffice to mention that the four witness statements presented by the prosecutor reveal that guns such as G3 rifles and more commonly AK47s were used in the killings of Luos in Naivasha. As the Appeals Chamber has stated in one of its early judgments,” Trendafilova said in her communication.

Trendafilova further explained that by amending the charges, no new charges were introduced since it was the Pre-Trial Chamber that dismissed the allegations by the prosecution that victims were shot using guns after the prosecution failed to provide evidence to prove it.

“The chamber explicitly rejected the prosecutor’s allegation that weapons were used in Naivasha due to lack of evidence, and stated: The chamber clarifies that the use of weapons and uniforms is established by the evidence only in relation to the events in Nakuru. Conversely, the chamber does not at this stage of the proceedings find sufficient evidence to substantiate the prosecutor’s allegation that weapons and uniforms were used in Naivasha,” Trendafilova recalled.

“Thus, it is apparent that the nature of the requested amendment does not aim at adding an additional charge or substituting an existing charge with a more serious one. Rather, it is a re-insertion, on the basis of the new evidence presented, of an already known specific factual allegation for an existing charge of murder in Naivasha – a location that has already been referred to in the Confirmation of Charges Decision.

It follows that the Single Judge does not need to hold a hearing for the purpose of deciding on the prosecutor’s request,” she asserted. Though the prosecution is not allowed to do investigations after confirmation of charges according to the Rome Statute, the judge said under special circumstances it is allowed to continue with investigations even after charges are confirmed based on reasons given by the prosecutor in her request.

Trendafilova said based on complaints by the prosecution that the government of Kenya failed to cooperate with the court and was also unwilling to submit required information to help in the investigations, the Pre-Trial Chamber allowed the prosecution to continue with investigations after charges had already been confirmed.

She also based the approval on security challenges owing it to the alleged intimidation of victims and witnesses.

Another concern that allowed the prosecution to continue with investigations at such a stage was also the challenges that it faced in getting ‘insider witnesses to provide information to the court.’

“In the context of the present case, the prosecutor managed to furnish the chamber not only with evidence supporting the existence of the factual allegation, but also with a reasonable justification for the continuation of her investigation subsequent to the confirmation hearing,” Trendafilova asserted.

Kenyatta’s legal team on Monday urged the ICC to dismiss the case against him after prosecutors last week dramatically dropped all charges against his co-accused former Head of the Civil Service Francis Muthaura after a key witness withdrew testimony.

It was the first time ICC prosecutor decided to drop a case since the world’s first permanent independent war crimes court began operating in 2002. Lawyer Steven Kay on Monday said all the five charges against Uhuru should now also be reconsidered.

On Wednesday, Bensouda said she would not drop the crimes against humanity charges facing the president-elect. She told reporters in Paris that it is only a question of when and not if, Uhuru goes to trial.

Kenyatta’s trial is scheduled to begin in July and he has repeatedly vowed to cooperate with the legal proceedings.

KALEMBE FILES ELECTION PETITION

Politician Kalembe Ndile on Wednesday protested against the announcement of two different results for Kibwezi West constituency in a span of three days. In an election petition before the High Court in Machakos challenging the election of  Patrick Musimba as the MP for Kibwezi West, Ndile argues that tallying in most polling stations was conducted improperly.

He says the returning officer used form 35 to declare Musimba winner with 17,174 votes against his 16,975. “But on March 8, the same returning officer this time using form 36 declared Musimba winner with a different figure of 17,196 against 16,976 that I purportedly scored,” Ndile says.

The former MP, who is represented by lawyer Andrew Makundi, has sued Musimba, Kibwezi West returning officer and the electoral commission. The Kibwezi West seat had nine contestants. Ndile lists 10 grounds challenging the results.

He says counting of votes in most polling stations was done after midnight in dim light. “Some stations used light from their mobile phones and motorcycle headlight and the petitioner took video of such instances to help argue his case,” Mr Makundi said.

“This happened at Wivia primary and Kyandundu primary schools polling stations,” he said. Ndile wants the court to order a vote recount.

RUTO'S RESPONSE TO RAILA'S PETITION

Ruto maintains the Jubilee team won the presidency by over 50.02 per cent. “Part of the Jubilee coalition votes were lost in an improper reconciling of spoilt and rejected votes but the coalition accepted the declared results,” he says in the papers prepared by his lawyer Katwa Kigen.

He says Raila’s allegation that Uhuru did not garner over 50 per cent votes was unfounded and untrue. The Jubilee luminaries contend that most of the observers accredited by IEBC, including Heads of States and representatives of other countries, had returned the verdict the polls were substantially free, fair and credible.

Their lawyers led by Fred Ngatia for Uhuru and Katwa Kigen for Ruto, argue the Supreme Court has no jurisdiction to entertain some of the questions of criminal culpability sought by Raila against the IEBC and its chairman. It cannot deal; they go on, with the procurement process of the electronic equipment used in the polls.

Ruto says Raila cannot seek what would be an invalidation of all the other elections for other seats. The court has no power to address the issue of voter registration, civic education, campaigns, elections and declarations into various offices, they added.

UHURU'S RESPONSE TO RAILA'S PETITION

Below is a summary of Uhuru Kenyatta’s response to the Raila Odinga’s Presidential Election Petition filed at the supreme court of Kenya.

The contents of paragraph 2.3 of the Petition are incorrect to the extent that the Petitioner attributes the enactment of the Constitution to the Government of the Republic of Kenya, civil society and the private sector whereas the Constitution is in truth adopted and enacted by the people of Kenya.

The 3rd Respondent having perused the Petition has noted that no Accusation is made against him.

The Petition is replete with falsehood and is a robust effort to exaggerate facts and circumstances which are intended to secure for the Petitioner an unjust advantage. The Petition in essence seeks to substitute the will of Kenya people who elected the 3rd Respondent in elections that were free, fair and credible by the standards established by law.

The 1st Respondent’s conduct of the election must also be assessed against the following novel circumstances;

For the first time in Kenya’s history, 6 elections were held simultaneously on the same day.

For the first time in Kenya’s history, portions of the electoral process were conducted through electronic means including voter registration.

The general election was the first one under the new Constitution.

The record registration of over 14 million voters.

Creation of 80 new constituencies and delimitation of new electoral units undertaken in 2011 pursuant to the provisions of Article 89 of the Constitution of Kenya.

The conduct of elections under a statutory framework for the creation of coalitions and a new Political Parties Act.

The conduct of elections that will lead to the first devolved system of Government in Kenya.

Significant delays in the enactment of electoral laws by Parliament which was compounded by several late stage amendments to such laws with the attendant consequence that the 1st Respondent’s schedule of executing the efficient conduct of the elections was disrupted.

A legal challenge and political opposition to the procurement process commenced by the 1st Respondent for BVI, BVR and electronic results transmission system.

The Constitution does not impose any duty on the 1st Respondent to use BVI, BVR and/or a system of transmitting election results electronically hence it is a fundamental misconception of the law for the Petitioner to contend that either registration of voters, identification of voters or transmission of the votes cast was required by law to be done via an electronic system.

At a press conference convened on 31st July, 2012,the Petitioner and several senior members of ODM called for a return to the manual system and declared that Kenyans did not want the BVR system. It is therefore the height of hypocrisy for the Petitioner to now claim that the only credible process of conducting elections must be founded on an electronic system.

Following consultations between the President, the Petitioner and the 1st Respondent, a decision was made to procure the BVR Kits from the Government of Canada in a Government – Government deal. The Cabinet meeting at which the decision was made was chaired by the President and the Petitioner.

It therefore follows that the Petitioner had a critical role in the identification and eventual purchase of the BVR Kits. The Petitioner cannot therefore either found a cause of action arising from his participation in the purchase of the BVR kits and/or benefit from the ultimate partial failure of the electronic systems.

The notion that electronic voting systems are the only accurate, accountable, verifiable, transparent and efficient method of voter registration, voting and results transmission is not only fundamentally unsound in law but also factually incorrect. Such systems have failed all over the world in the past in the following instances:

(i) The BVR system crashed and/or failed in 2012 in the Ghana Presidential election.

(ii) Electronic voting systems failed during the 2000 Presidential election in the United States of America.

(iii) Electronic voting systems have failed, crashed and or mulfunctioned in numerous elections in Europe and in Municipal elections in the United States of America to the extent that legislation has been introduced in some jurisdictions requirement for a manual back up system in every election.

In excess of 800,000 people expressed their preference for the 3rd Respondent who are more than the total number of voters in 3 densely populated counties namely Tharaka Nithi, Kakamega and Bomet.

Every effort humanly possible was made to ensure that the voting method adopted by the 1st Respondent was simple, accurate, verifiable, secure, accountable and transparent.

The results announced were indeed accurate and verifiable in accordance with the standard established by law and were announced in a transparent and lawful manner as contemplated by Article 86 of the Constitution and the Election (General) Regulations, 2012.

The allegations at page 14 paragraph 5.2 of the Petition are false. In particular the 3rd Respondent states that the will of the people of Kenya expressed in a free fair and credible electoral process can not in law be overturned or subverted on the basis of a hypothesis. The petition correctly understood, is founded on a hypothesis incapable of proof; it is an expression of bitterness arising from the Petitioner’s loss of the poll and raises no legal issues capable of a judicial inquiry.

The allegations at page 16 paragraph 5.5 are false. The agents for all political parties present at the national tallying centre were not ejected from the tallying centre but rather provided with suitable alternative facilities within the tallying centre after the Petitioner’s supporters started shouting and mis-conducting themselves in a room which they and other agents had been allocated for verification of results.

It is thus manifestly clear that the Petitioner’s attempt to impeach the entire electoral process and invalidate the results is an afterthought informed by the shock of losing the election rather than on any impropriety or irregularities by the 1st and 2nd Respondents.

The 3rd Respondent states that the burden of the Petitioner’s case is that the entire electoral process commencing with voter registration, voting and tallying of results and the declaration of results was invalid, null and void. The 3rd Respondent contends that the court is being invited to stage a coup against the constitutional governance of Kenya in that not only the Presidential election would be impugned but the Parliamentary, Gubernatorial, Senatorial and County Assembly elections would also be vitiated.

The Orders sought by the Petitioner are also mischievous and designed to cause disproportionate harm to constitutional governance in that they call for impeachment without legal basis of the only body established in law to conduct elections so as to trigger a crisis in the Executive and Legislative arms of Government that would enable the Petitioner to negotiate and/or bully his way to power in contravention of the Constitution.

EXECUTIVE SUMMARY OF AFFIDAVIT IN REPLY

I have actively participated in all aspects of the electoral process either directly or through agents of the Jubilee Coalition and TNA. I can unequivocally state that in my view the 1st Respondent and its staff, including the 2nd Respondent, have conducted the entire process with remarkable diligence, efficiency and in full fidelity to the standards established in the Constitution and all the electoral laws notwithstanding logistical and technological problems encountered on 4th March 2013.

The difference between the votes cast in my favour and those cast in favor of the Petitioner is 832,887. In all humility, the said difference is very significant and emphatically demonstrates the resolve of the people of Kenya to exercise their free and sovereign will.

At a press conference held subsequent to the election the Petitioner disclosed that he would contest the results of the election in court because he believed that he won the election by 52% – 53% having been so advised by foreign journalists who had seen “exit polls” results prepared by an unknown entity.

During the 21 months or so that the 1st Respondent has been in existence, it has outdone itself in establishing and overseeing the creation of a very solid statutory and legal framework for the conduct of free, fair and credible elections. In my very respectful assessment, which I humbly invite this Honourable Court to share, the 1st Respondent has also scrupulously complied with such statutory requirements within the limits of human capacity.

I am a firm and passionate believer in Kenyan institutions, some imperfections notwithstanding, and in the sovereign right of the Kenyan people to reform and improve such institutions without disparaging them in the manner the Petitioner has done. The 1st Respondent has, in my view, acquitted itself very well under very difficult circumstances and is to be commended and not vilified.

I am aware that soon after the BVR tender process commenced by the 1st Respondent was terminated in June 2012, the Petitioner and other senior members of ODM held a press conference at which they demanded that the 1st Respondent reverts to the manual registration of voters. I now produce a recording of the said press conference which is available at http://www.youtube.com/watch?v=ijnglywxdmQ and is produced to this court in electronic form contained in an envelope marked “UK9”.

I am also aware that in the United States of America, some states have taken the step of abandoning electronic systems in favour of ballot papers. I now produce an article published in Time Magazine on 3rd November 2007 titled “Voting out e-voting machines”. The article is marked “UK10”.

There is no legal requirement for the transmission of final election results electronically. Indeed, the 2nd Respondent is obliged by law to announce the results on the basis of manual Form 34’s.

In response to the allegation that Kencall co-hosted servers for TNA and the 1st Respondent, I now produce an affidavit sworn by Nicholas Alexander Nesbitt on behalf of Kencall setting the record straight. The affidavit is marked “UK14”. Also annexed hereto and marked “UK14A” is an affidavit sworn by an ICT expert Stephen Kanyatte Mwangi, which provides further clarification on pertinent issues.

I nevertheless wish to state very firmly that the allegation that the voter register was unlawfully tampered with after the registration period had ended so as to confer a benefit to me is deceitful, irresponsible and a false allegation peddled by the Petitioner so as to attract unjustified sympathy and inflame public passions.

Nearly all local and international observers and monitors who were accredited by the 1st Respondent have issued preliminary reports stating that the election was substantially free, fair and credible notwithstanding the minor irregularities and other logistical problems experienced during the election process.

The Petitioner has, subsequent to the announcement of the results, repeatedly stated that the election was “stolen” from him and that the 3rd and 4th Respondents are “criminals who should be in jail”. I now produce a video clip depicting the said speech by the Petitioner, which is in electronic form contained in an envelope marked ”UK 19”.

The Petitioner and his agents, particularly one Johnstone Muthama, have repeatedly engaged in hate speech and incitement in violation of the provisions of Article 33(2), the Electoral Code of Conduct and the National Cohesion and Integration Act so as to:

Undermine the electoral process

Compromise the fair adjudication of this petition; and

Subvert the free and sovereign will of the people of Kenya expressed on 4th March 2013.

I now produce a summary of news reports marked “UK 20” which identify instances of show the Petitioner inflaming and inciting public passions before and after the elections.

The public utterances by the Petitioner since the election when seen against the orders sought in the Petition are so broad and ungovernable that it appears to me that the Petitioner seems intent on provoking a constitutional leadership crisis that would enable him to negotiate his way to government. The utterances by the petitioner demonstrate beyond peradventure that he would only consider an election free, fair and democratic if he were declared the winner. I urge this Honourable Court to protect this nation by rejecting this irresponsible and unlawful attempt to secure power notwithstanding the resounding loss suffered at the General Elections.

 

WORLD MOURNS AS CHINUA ACHEBE DIES AT 82

Leaders all over the world mourned novelist Chinua Achebe who died on Friday. Former President Daniel arap Moi sent his message of condolence describing him as a literary icon in Africa.

“Chinua had, in his readable and witty literature, awakened the African peoples to the gradual disintegration of their cultures and moral values under the impact of western influences,” he said in a statement released by his Press Secretary Lee Njiru.

He said when he met Chinua about 25 years ago, he found him humble and self-effacing despite his immense fame worldwide.

“I join his family, countrymen and his fans in mourning this great and yet humble son of Africa, “said Moi.

No longer at ease, Things fall apart, A man of the People

By Petr Nguli

If a child washed his hands he could eat with kings. But Eneke the bird says that since men have learnt to shoot without missing, he has learnt to fly without perching. Those are the words of Chinua Achebe. The death of Chinua Achebe is a great loss for the African continent. Achebe was famous as much for what he represented as for what he had written – an emblem of a continent finding its voice. Every child in Africa grew up with Achebe.

Its only fair to pay tributes in a novel compilation for Achebe and other great African writers. When you are no longer at ease, things fall apart for a man of the people along the anthills of the savanna.  The leopard got his claws because Chike and the river ran across the bridge in the river between and shouted, 'Weep not child', because you brought betrayal in the city but don't despair because the beautiful ones are not yet born. Chinua Achebe, you shaped my literature and command of the English language. I offer you a grain of wheat.

I remember the proverbs that you taught us because as you said, among the Igbo the art of conversation is regarded very highly, and proverbs are the palm-oil with which words are eaten. I say this because whenever you see a toad jumping in broad daylight, then know that something is after its life. And when a mad man walks naked, it is his kinsmen who feel shame, not himself.

You were brave and it is praiseworthy to be brave and fearless, but sometimes it is better to be a coward. Because we often stand in the compound of a coward to point at the ruins where a brave man used to live. For when a handshake goes below the elbow, then know that it has turned into something else. Those whose palm kernels were cracked for them by a benevolent spirit should not forget to be humble. You were humble enough professor Achebe. As I stare at your death coffin, the eye is not harmed by sleep. You said that he who has people is richer than he who has money.

So if you want to eat a toad you look for a fat and juicy one. You said that an old woman is always uneasy when dry bones are mentioned in a proverb. So be at ease because you said that if you don't like someone's story, write your own. To me, being an intellectual doesn't mean knowing about intellectual issues; it means taking pleasure in them. For when the moon is shining the cripple becomes hungry for a walk. There is no story that is not true. Perhaps down in his heart, Okonkwo was not a cruel man. But his whole life was dominated by fear, the fear of failure and of weakness.

Chinua Achebe, you are still alive and I wish you long life. You will never die because we and our future generations will read your works for ever. Do not despair. I know you will not despair. You have a manly and a proud heart. A proud heart can survive a general failure because such a failure does not prick its pride. It is more difficult and more bitter when a man fails alone.

Otherwise, the lizard that jumped from the Eroko tree said it would praise itself if no one else did. When suffering knocks at your door and you say there is no seat left for him, he tells you not to worry because he has brought his own stool. Rest in peace Chinua Achebe.

 

LAWYERS WARN OF NEED TO PROTECT LAND

Lawyers have called for fast tracking of a law to protect threatened community land. They said majority of the 70 per cent of unadjudicated land would fall under community land. Lawyer Paul Ndung’u said community land must be protected in the new constitutional dispensation to prevent a repeat of historical injustices at the Coast.

“Communities at the Coast, Rift Valley and others lost land to illegal and irregular allocations following lack of a law to protect community land,” he said. Ndung’u chaired the Commission of Inquiry into Illegal and Irregular Allocations of Public Land (Ndung’u Commission) that exposed massive land grabbing.

He was speaking at the Law Society of Kenya Continuing Legal Education two-day seminar at Queens Garden in Eldoret. He said reports that would have assisted in solving historical land injustice like The Njonjo Land Commission on Land Law System of Kenya are gathering dust. “Recommendations by the Parliamentary Committee on the Coastal Land Problems in 1976 are yet to see the light of day,” he said.

Lawyer Scholar Collins Odongo said enactment of the Community Land Act would protect the 70 per cent of unadjudicated land.

 

CONGO'S BOSCO NTAGANDA IN ICC CUSTODY

Congolese war crimes suspect Bosco Ntaganda has arrived in The Hague from Rwanda and is in the custody of the International Criminal Court. Gen.  Ntaganda, a key figure in the conflict in Eastern DR Congo, surrendered to the US embassy in Kigali. The ICC has charged him with 10 counts of war crimes and crimes against humanity, which Gen Ntaganda denies.

ICC chief prosecutor Fatou Bensouda said: " This is a good day for victims in the DRC and for international justice, those who have long suffered at the hands of Bosco Ntaganda can look forward to the prospects of justice taking its course " His first appearance before judges is scheduled for 26^th March 2013.

At the hearing before a pre-trial chamber, he will be informed of the charges against him - and dates for future appearances will be set. Gen Ntaganda is the first suspect to surrender himself voluntarily to the ICC's custody.

Known as "The Terminator", Gen. Ntaganda has fought for a number of rebel groups as well as the Congolese army. Most recently, he was believed to be one of the leaders of the M23 rebel movement, which has been fighting government troops in the East.

He is accused of seven counts of war crimes and three counts of crimes against humanity allegedly committed in Ituri, DR Congo, between 2002-2003. The charges include enlisting child soldiers, murder, rape and sexual slavery.

The DR Congo government has said that Gen. Ntaganda, who comes from the Tutsi ethnic group, crossed into Rwanda on Saturday after he and some of his followers were defeated by a rival faction of the M23 group.

Eastern DR Congo has long suffered from high levels of violence linked to ethnic rivalries and competition for the control of mineral resources. A statement from the ICC thanked the US, Rwanda and DR Congo for helping secure the transfer of Gen Ntaganda to The Hague.

But it also urged urged them to "renew and refocus their efforts" to secure the arrests of other suspects who remain at large, including Democratic Forces for the Liberation of Rwanda (FDLR) commander Sylvestre Mudacumura, and the top commanders of the Lord's Resistance Army.

 

SUGAR BOARD COURT BATTLE WITH WEST KENYA CO.

Sugarcane miller, West Kenya Company, has taken on industry regulator, Kenya Sugar Board (KSB), for what it terms unfair licensing conditions. The company has moved to court seeking to overturn an order by KSB preventing it from setting up a cane buying centre at Nyando sugar belt in South Nyanza.

The zoning battles are not new for the sugar millers who last year were involved in unending tussles with rival, Mumias Sugar Company, over control of the Busia sugar belt. West Kenya lawyer Raymond Olendo has faulted the directive contained in a circular dated August 15, lasr year, threatening withdrawal of its license for failing to comply with the directive, adding it is illegal and unconstitutional. Olendo says the regulator is wrong to purport to enforce industry harvesting framework as though sugar zones still exist when the board licensed construction of another factory, Butali Sugar Mills in Kabras.

“The board is discriminately forcing my client to adhere to an impractical cane harvesting framework and non-compliance is threatened by withdrawal of his license,” says Olendo. The application filed on March 14, will be mentioned on April 29, before Justice George Dulu in Kakamega. West Kenya is seeking orders to overturn the board decision. It says the board has acted in excess of its powers by threatening to withdraw their operating licence. It says the purported cane harvesting framework has no legal basis because only the minister should publish regulations to enforce the framework.

Olendo says the directive to enforce the framework constitutes an unlawful attempt to impose sugar zones contrary to Section 4 and 6 of the Sugar Act 2001 that do not empower the board to meddle with or interfere with contractual obligations and business operations of millers and cane growers. He argues the board’s decision contravenes section 16(5) and (6), which allows millers to offer extension or other services growers and to conduct business in accordance with the Sugar Act.

He says the harvesting framework has not been made in accordance with sections 32 and 33 of the Sugar Act 2001. Olendo says the board contradicted itself by purporting to enforce the zones it has severally said in court cases involving West Kenya and other millers, it has no legal powers to designate sugar zones.

 

Courtesy: Standard Digital

 

 

IEBC ON JACINTA MWATELA'S PETITION

Former Deputy Central Bank Govenor, Jacinta Mwatela through her lawyer, Sarah Mutile Mutwiwa claims that the IEBC conducted the election of governor amid massive irregularities and refused to listen to complaints raised by other candidates and their agents.

She wants the court to quash the decision of the returning officer to declare John Mruttu as the winner.

Mwatela also wants a declaration that the final results of the governorship post contravened provisions of the Constitution arguing that the results were announced without the approval of other candidates after their agents declined to sign the necessary forms. Mutwiwa wants the court to order for a fresh voting, verification of ballot boxes or re-tallying of all the votes cast in the six constituencies.

Lawyer Julias Kemboi representing IEBC filed an objection challenging the jurisdiction of the court in handling a petition seeking orders to annul the election of John Mtuta Mruttu as the Taveta County governor.

The immediate former Kenya Oil Refineries CEO John Mtuta Mrutu of ODM beat former CBK Deputy Governor Jacinta Mwatela of Wiper Democratic Party to win the seat.

ODM’s Mrutu was declared the winner with 34,290 votes while Mwatela got 32,890 votes. Mwatela, wife to outgoing Mwatate MP and Education Assistant Minister Calist Mwatela, has vowed to challenge the results in court, claiming she was rigged out.

Justice Odunga directed the parties to serve and the suit will be heard on April 8.

 

ELECTION PETITION AGAINST JUSTICE MADZAYO

The Independent Election and Boundaries Commission (IEBC) has filed a preliminary objection to an application seeking to quash the election of Stewart Madzayo as the Senator Kilifi County.

In the senatorial case, petitioners through lawyer Stephen Kithi, accused the IEBC and the county returning officer of arbitrary declining to give audience and proceeded to conduct the Kilifi senatorial election amid numerous irregularities.

Mfida Mohammed through lawyer Kithi had sought to stop the declaration of the results and stop the publishing of the results for the senatorial seat. However the IEBC through lawyer George Murugu has sought the court to throw out the petition on the grounds that the application violated articles 87 (1) of the constitution touching on the parliamentary and County Elections.

Murugu said the application which had sought to stop Madzayo from taking over the senatorial seat had been overtaken by events upon the publication of gazette notice number 3155 on March 13 which constituted the declaration of elective positions.

“The secretary of the IEBC has been wrongly enjoined in the suit and the application is gravely, fatally defective and an abuse of this honourable court process and only lies for dismissal,”read the notice of preliminary objection. The case will be heard on April 8th 2013.

WAITITU PETITION AGAINST KIDERO TO PROCEED

The election petition filed by the immediate former member of parliament for Embakasi Ferdinand Waititu contesting the gazettement of Dr. Evans Kidero as Nairobi governor-elect will proceed to full trial.

Justice Mumbi Ngugi who heard the application for the petition said that it was filed within the stipulated time of 28 days after gazettement as per the constitution.

 

The chief justice is now expected to appoint a judge who will preside over the case that seeks to challenge the announcement of Kidero as the winner of the gubernatorial race for Nairobi County.

Waititu filed the case on March 14, citing irregularities in the poll. He further claimed that some voters in various constituencies cast their votes twice in favor of Kidero.

Kidero was declared winner by the IEBC in the race for the Nairobi governor seat in which he garnered 692,483 votes to Waititu’s 617,839 votes.

 

Court declines to block Govenor swearing in

The High Court in Nyeri on Monday declined to temporarily block the swearing in of the Governor-elect Ndiritu Gachagua pending the hearing of a poll petition. Thuo Mathenge, who was third in the race behind Gachagua of the Grand National Union GNU and Dr. Gakuru Wahome of The National Alliance, had wanted the swearing in stopped pending the hearing of a petition he has filed against the winner.

After hearing an application filed under a certificate of urgency, Justice James Wakiaga directed the petitioner to serve Gachagua with the suit papers to allow an interpartes hearing on Friday. The Saba Saba Asili SSA candidate had asked the court to bar the winner from being sworn-in, saying he will suffer irreparable damage if the swearing in was conducted before the hearing of the suit.

But the judge said it would be important to hear both sides before the injunction was issued. “The Election Act does not give me powers to issue an injunction against a person duly elected. It only gives me powers to hear the petition challenging the win,’ said Wakiaga.

 Courtesy: Standard Digital

AG, GITHU TO JOIN CORD PETITION

Attorney General Githu Muigai moved to the Supreme Court seeking to be enjoined in the matter as ‘a friend of the court.’ The application to join the case as Amicus Curiae means that the AG is not a party to the suit but can be enjoined as a matter of public interest.

As friend of the court, the AG can educate the court in points of law or bring matters to the attention of the court that may have been overlooked. Both Kenyatta of TNA and Deputy President-elect William Ruto of the United Republican Party (URP) have been named as respondents in the petition by CORD, alongside the Independent Electoral and Boundaries Commission (IEBC) and its chairman Issack Hassan.

Lawyers Fred Ngatia and Katwa Kigen will act for the Jubilee team, while the IEBC will be represented by among others, lawyers Mohammed Nyaoga, Paul Nyamodi and Nani Mungai. Lawyers from both teams have been holding meetings since Saturday to sift through evidence they intend to use in representing their clients in the landmark petition.

Prime Minister Raila Odinga who is the petitioner wants the announcement of Kenyatta as President-elect and Ruto as deputy overturned and a fresh presidential election held. In the 44-page petition, Odinga also wants the process leading to their win declared null and void. He argues that there was no free and fair presidential election conducted, arguing it would be unlawful to have Kenyatta and Ruto form a government. The petition also argues that the voters’ register was altered.

“The voter register was severally altered as to make it difficult to tell which one was used finally. For the purposes of the 4th March elections the registration of voters was carried out between 19 November 2012 to 18th December, 2012, at the end of which the IEBC announced that 14,337,399 persons had registered as voters.”

The Supreme Court is expected to convene on Monday next week (nine days after the filing of the petition) for a pretrial conference. The conference will among other things consider consolidation of petitions and to give direction in regard to the filing and service of any further affidavits or the giving of additional evidence. The court is also expected to notify the IEBC to furnish it with all the relevant election documents relating to the petition before the commencement of the hearing. The hearing is expected to commence by Wednesday – within two days of the pretrial conference – as required by the Supreme Court rules.

 Apart from the CORD case, the African Centre for Open Governance (AFRICOG) has also filed a case in the Supreme Court to contest the outcome of the March 4 presidential poll. AFRICOG however says its petition is to challenge the process the Independent Electoral and Boundaries Commission (IEBC) used to tally the final results.

 

Striking Mombasa workers to sue Municipal Council

KLGWU Mombasa Branch Suleiman Mohammed (right) addressing Mombasa Municipal Council workers outside the Town Hall over salary arrears on March 18, 2013. Photo/GIDEON MAUNDU NATION MEDIA GROUP

Some 2,600 striking Mombasa Municipal Council workers have opted to sue their employer over a two-month salary arrears dispute of Sh220 million. The Kenya Local Government Workers Union (KLGWU) Mombasa County Branch Secretary Rashid Muteti on Monday said the union had directed its lawyers to sue the council over non-payment of the workers’ salaries. He said that although the workers began their strike last Thursday to force the Treasury to disburse the Local Authority Transfer Fund (LATF) cash totaling Sh700 million, nothing had materialized.

Mr. Muteti also noted that some workers had been locked out of their rental houses for failing to pay rent. He also said that some children of the workers had been sent back home over school fees arrears while other families were starving for lack of food. “Council workers are going through hell due to the failure to clear their two months’ salary arrears,” he said adding that some workers had been divorced by their spouses for failing to fend for their families.

“Despite the fact that workers are on strike, the union has resolved to take the council to court to demand immediate payment of the salary arrears,” he added. Mr. Muteti said although the council was yet to receive the LATF cash from the Treasury, it collected a revenue of Sh500 million between January and last month. “The non-payment of LATF by the Treasury is not an excuse for the council to fail to pay workers their dues since it collects revenue from taxpayers daily,” he said.

However, Mombasa County Town Clerk Mr. Tubmun Otieno said the workers would receive their salary arrears on Tuesday. Mr. Otieno said the Treasury was expected to disburse an unspecified amount of LATF funds on Monday to facilitate the payment of workers' salary arrears. He said the salary arrears would be deposited in the accounts of each worker by Tuesday afternoon. “The council workers will receive their salary arrears totaling Sh200 million after the Treasury promised to disburse the LATF cash,” he said.

“I cannot tell how much money has been remitted to the council by the Treasury. However, we shall be able to settle the wage dispute,” he added. Mr. Otieno also said that he had briefed the union officials over the matter and prevailed upon them to call off the strike. However, the union officials have vowed to continue with the strike until the workers get their salary arrears on Tuesday as promised.

 Courtesy Nation Media

ODUOL FILES PETITION AGAINST IEBC AND SAFARICOM

William Oduol presenting his case to the Siaya County Returning Officer after he rejected results from Bondo, Rarieda and Gem Constituencies on March 6, 2013.

An application filed by Mr. William Oduol seeking to get information from the electoral commission and Safaricom so as to challenge’s the election of the Siaya governor will be mentioned on Wednesday. The application, which was presided over by Judge Aggrey Muchelule, could not proceed since the Independent Electoral and Boundaries Commission (IEBC) is yet to present forms 35, 36 and 38 which are critical to the case.

In the inter-parties hearing of the application filed in the High Court on Monday, the Judge ordered IEBC to avail the relevant documents by Wednesday. The applicant’s lawyer, Mr. Dismas Wakla, told the court that he addressed the issue with IEBC through a letter dated March 7 to supply relevant documents but had not received feedback. Mr. Wakla also added that the case will not proceed without forms 35, 36 and 38.

At the same time Safaricom's advocate Mr. Echesa Willis requested the court to withdraw his client from the matter since they had already supplied the documents in question. Mr. Echesa told the court that IEBC was supplied with the documents on March 14. IEBC confirmed receiving the documents on Friday last week.

Nonetheless, IEBC requested for an additional three days to verify the documents before tabling them court since they were overwhelmed with numerous petitions. The court intervened on the matter when the three parties failed to agree and ordered IEBC to avail the documents in court by Wednesday.

 

Raila claims IEBC denied him Victory

Residents of Changamwe constituency acknowledge greetings from Prime Minister Raila Odinga (atop his car) before he addressed them at Kwa Hola on his way to Mombasa on March 18, 2013. Photo / Gideon Maundu            

Prime Minister Raila Odinga has said his CORD alliance has irrevocable evidence to show that the Independent Electoral and Boundaries Commission IEBC stole the March 4 polls for Uhuru Kenyatta. And for the first time since the poll results were announced Raila claimed he garnered 5.7 million votes against his main rival Mr Uhuru Kenyatta’s 4.5 million but the Independent Electoral and Boundaries Commission (IEBC) denied him victory.

“Uhuru got 4.5 million votes while I garnered 5.7 million votes. What you saw being remitted from Bomas were dramatized results. You are going to know what IEBC did,” he told the cheering crowds.

He promised his supporters the alleged damning evidence would soon play out in the Supreme Court and Kenyans would be shocked. Raila who embarked on roadside rallies at the coastal city told his supporters that he won the March 4 presidential election and added that CORD’s lawyers will demonstrate in the Supreme Court that besides many forms of malpractices IEBC illegally added about 1.7 million votes to inflate Uhuru’s count and deny him victory.

He told thousands of supporters who jammed the Moi International Airport in Mombasa that their vote will be vindicated when CORD unleashes the full scope of malpractices he said were committed to defeat the will of the democratic majority. And as Raila landed in Coast, his rivals President Elect Uhuru and his deputy elect William Ruto retreated to a luxurious Resort at the Al Manara in Kwale County to take stock of their alleged win.

Ruto joined Uhuru who has been at the coast since Saturday after he landed at the Ukunda airstrip where he was received by Coast PC Samuel kilele, Kwale County Commissioner Evans Achoki, Msambweni OCPD Jack Ekakoro among others. At the Ukunda Airstrip security personnel who came to secure Ruto’s entry outnumbered journalists and members of the public who had turned up to cheer and welcome him.

Ruto touched down at exactly 1:06pm aboard a Kenya Police 5Y-GSU jet and declined to talk to the media that had been waiting at the airstrip terming his visit as private. Raila and the Orange Democratic Movement (ODM) party received the majority of votes from Coast province on March 4. Out of 27 contested parliamentary seats in the province CORD captured 18 including all the six positions in Mombasa County.

CORD elected leaders welcomed the PM at the airport and Raila later addressed them at a hotel in Mombasa. Raila claimed Uhuru was imposing himself on the people saying there was sufficient evidence to justify his claims.

“I have told Uhuru his father ruled this country but he cannot impose himself on the people. I have told him I cannot also force myself on the people,” Raila said.

Raila said a lot of dirt schemes would be exposed in court during the petition and asked his supporters to fully back it. “Last time, the presidential election was bungled and we resorted to the streets. This time round we have gone to court. I can assure you the court will hand us justice,” Raila said.

He was on the “Democracy on Trial” campaign of Mombasa city with elected leaders and hundreds of supporters in tow. The team wore white T shirts bearing the message “I support the petition. Democracy on Trial”. Raila arrived aboard a charted aircraft at around 2pm. Coast PC Samuel Kilele was nowhere to receive the PM. Instead he was miles away receiving Vice President elect William Ruto at the Ukunda Airstrip. Raila was accompanied by Cabinet ministers Wycliffe Oparanya and Ababu Namwamba, Machakos senator-elect Johnstone Muthama and Mbita MP-elect Millie Odhiambo among others. Raila dressed casually and there was no red carpet laid for him.

He was received by Mombasa governor-elect Hassan Ali Joho, Mombasa senator-elect Hassan Omar Sarai, Kwale senator-elect Boy Juma Boy and several MPs-elect from the coastal counties. His convoy snaked to the north coast for a meeting with local leaders prompting a heavy traffic jam. The PM said he was in Coast to thank his supporters who voted for him overwhelmingly in the last polls and to call for calm as the petition at the Supreme Court got underway.

“I have come to thank you for voting for me and tell you your vote was not wasted. I know I won fairly and my competitors know I defeated them,” Raila said.

Courtesy: Standard Digital

PRESIDENT ELECT, UHURU'S DEFENCE TEAM

As the Cord leader moved to court, members of the Jubilee legal team set up an office at Chancery Building on Nairobi’s Valley Road. For the past couple of days, the team has been combing through the IEBC poll results in anticipation of the Cord petition. Sources told the Sunday Nation the team comprises Fred Ngatia, who was Mr. Kenyatta’s chief agent at the Bomas vote tallying centre, and Mohammed Nyaoga, a former partner of Attorney-General Githu Muigai.

 Other members of the Jubilee legal team are Katwa Kigen, Waweru Gatonye, and Tharaka Nithi Senator-elect Kindiki Kithure, his Elgeyo Marakwet counterpart Kipchumba Murkommen, Dr. Stephen Njiru and OL JOROK MP-elect John Waiganjo.

One of them told the Sunday Nation in confidence that they hope to rely on authorities such as the 2000 dispute in the US between presidential candidates Albert ‘Al” Gore and George Bush. The dispute involved the constitutionality of a manual recount of Florida election ballots during the controversial 2000 presidential election. At the end of the Election Day, Bush was ahead of Gore in the Florida popular vote by only 2,000 ballots, close enough to trigger an automatic recount. After the recount, Bush’s lead dwindled to a mere 900 votes. Gore requested a hand-recount of votes in his four strongest counties. After the recount, Bush’s margin dropped to 537 votes. Gore then petitioned the State courts for a recount of 70,000 contested ballots. Although the lower court rejected his request, the Florida Supreme Court reversed on appeal, and ordered the disputed ballots recounted.

Bush and Cheney appealed the Florida Supreme Court’s decision to the US Supreme Court, and were granted a stay on the Florida court’s order until the US Supreme Court issued its decision. The Supreme Court voted in Bush’s favor on a majority of five to four. In his petition, Mr. Odinga said a “curious feature” of the IEBC’s conduct was that it allowed a mobile phone provider to co-host both its server and that of the TNA which compromised the integrity of the electoral process and gave an impression that TNA had access to the commission’s confidential information. He claimed that the voter register was severally altered and made it difficult to tell which one was genuine since IEBC had a total of 14,267,572 registered voters gazette after the end of voter registration only for the figure to increase to 14,352,533 during the elections.

Mr. Odinga said that the electronic results transmission systems adopted by IEBC were poorly selected, designed and implemented and that they were destined to fail from inception and allow manipulation of results. “The failure and collapse of the system on the polling day fundamentally changed the system of polling and the number of votes cast leading to inordinate delays at the polling stations, thereby reverting Kenya to the discredited manual system, with all the attendant risks and opportunities for abuse and manipulation which in fact took place,” said Mr. Odinga. Mr. Odinga argued that the election outcome was so flawed that it is difficult to tell whether the results were the true, lawful and proper expression of the Kenyan people’s will.

He wants the elections nullified on grounds that the conduct of the presidential election was invalid since IEBC failed to carry proper voter registration; presidential elections were not conducted in accordance with Article 81 and 86 of the Constitution and that IEBC failed to transmit results in electronic form before ferrying them to the National Tallying Centre. “IEBC were under obligation to respect, uphold and defend the Constitution. They failed to properly count, tally and verify the votes which clearly show that Mr. Kenyatta garnered less than 50 per cent of the votes,” said Mr. Odinga.

Among the issues he wants determined is whether the commission contravened the Constitution, the IEBC Act and the Elections Act; whether IEBC officials committed an electoral offence and whether Mr. Kenyatta was validly elected as the president. In the event that the Supreme Court upholds the arguments, Mr. Odinga wants IEBC Chairman Issack Hassan held responsible for conducting a flawed process and an order cancelling the certificate issued to Mr. Kenyatta. He also wants the court to order a fresh presidential election and any other relief the judges may deem appropriate. Mr. Odinga said he will demonstrate during the hearing that the IEBC failed to observe constitutional principles of rule of law, democracy, good governance, participation of people, inclusiveness, equality, human rights, integrity, transparency and accountability.

“Concerns over the electoral process started when the procurement for voter materials were marred with fraud. This was expounded by the discrepancies in the voter registration, voting process and tallying of votes which all point to anomalies which can only be cured by the Supreme Court,” said Odinga. He has named the IEBC, the commission’s Chairman Issack Hassan, Uhuru Kenyatta and William Ruto as respondents to the petition.

Courtesy of Daily Nation

CORD LEADER, RAILA FILES PETITION

            

The attention of Kenyans and indeed, the whole world, is now turned on five men and one woman after Cord presidential candidate Raila Odinga filed a petition at the Supreme Court challenging the declaration of Uhuru Kenyatta as the winner of the March 4 election. Mr. Odinga says he wants the highest court on the land to set aside the presidential election results announced by the electoral commission on March 9 claiming the election was marred by massive irregularities, malpractices and contravention of the Constitution.

With Saturday’s historic development in the first election after the 2010 Constitution, eyes turn to the court headed by Chief Justice Willy Mutunga. Other judges of the court include Mr. Philip Tunoi, Ms. Njoki Ndung’u, Prof Jackton Bouma Ojwang, Dr Smokin Wanjala and Mr. Mohammed Ibrahim. The appointment of Deputy Chief Justice Kalpana Rawal is yet to be approved by Parliament and so she won’t be hearing the petition.

Mr. Odinga wants the court to nullify IEBC’s declaration of Uhuru Kenyatta as president-elect and William Ruto as deputy president-elect. He also seeks to persuade the court that the whole electoral process leading to that declaration was null and void and a fresh poll should be held. Mr. Odinga has assembled a team of top lawyers led by Senior Counsel George Oraro who said they are confident and ready to prove before the Supreme Court that the elections were rigged in favor of Mr. Kenyatta.

“We are confident the case outcome will be in favour of our client (Mr. Odinga). Our case is watertight with sufficient evidence to prove the elections were not free and fair,” said Mr. Oraro. According to Mr. Odinga, there were no free and fair elections and no government can lawfully be formed from the declaration of Mr. Kenyatta and Mr. Ruto as President-elect and Deputy President-elect respectively. “The electoral commission failed to establish systems which are accurate, verifiable and transparent and declared results which in many instances had no relation to votes cast at polling stations. They developed opaque methods intended to manipulate results and excluded my representatives from the process,” swore Mr. Odinga.

He argues that anomalies were observed in the process from voter registration, transmission of results, to tallying and accused IEBC of declaring results on the basis of unsigned Form 36, multiplying Form 36 in some constituencies and altering entry files. Mr. Odinga swore that votes cast exceeded the number of registered voters in Tiaty, Laisamis, Igembe Central, Buri, Chuka, IburiIgambaNgombe, Lari, Kapenguria, Saboti, Turbo, Marakwet West, Kajiado West, Bomet East, Mt Elgon, Langata and Aldai constituencies. He said that the final tally in Webuye East, Webuye West and Igembe constituencies differed from those announced at the centre. In Kikuyu, Juja, Chuka, Thika, Kiambaa, Limuru, Nakuru, Igembe South, Lagdera, North Imenti, Central Imenti, Bomet East and Sigor constituencies, Mr. Odinga claims there were more than two forms reflecting the final presidential results. “In the final tally, the total number of votes cast in the presidential elections differed from those for gubernatorial and parliamentary elections which took place on the same date, clearly attesting to my belief that massive electoral fraud and malpractice occurred in contravention of the Constitution,” said Mr. Odinga.