Petition over Jumwa's degree moved to Malindi court

A case in Mombasa High Court seeking to bar Malindi MP Aisha Jumwa from vying for Kilifi governor has been moved to Malindi.

Concerned Kenyan Citizen, Rajab Shikara, and Daniel Kahindi are challenging the MP's eligibility to vie for lack of a university degree.

The petitioners have listed Jumwa as the first respondent, IEBC, the Commission for Higher Education and Ethics and Anti-corruption Commission as the second, third and fourth respondents respectively.

Through their lawyer Derrick Odhiambo, the petitioners asked the court to certify the case as urgent, restrain IEBC from gazetting and processing Jumwa's nomination papers and bar her from contesting for the seat.

Lawyers Danstan Omari and Shadrack Wambui are representing Jumwa while Titus Mutugi and Sheila Muthee represent the IEBC.

The electoral commission had filed a preliminary objection to the case on Friday last week, arguing that the case should be heard and determined by the IEBC Disputes Resolution Committee. 

On Monday, Justice Olga Osewe of Mombasa directed that the case be heard at the High Court in Malindi.

"I'm transferring this matter to the High Court in Malindi where Kilifi falls and so I instruct Mr Odhiambo (the petitioners' lawyer) to get everybody on board before those orders are made,"Justice Osewe said.

"This is because we have similar matters and we know the nature of these matters– they are urgent and we have to prioritise them and there is a need for distribution of work."

Counsel Odhiambo still asked the court to grant conservatory orders as requested by the petitioners, "in the interest of justice." 

"We request that you grant us prayer number two, on account of, if the IEBC calendars are irreversible and if the IEBC proceeds and gazettes the first respondent this matter is going to be rendered as an academic exercise," Odhiambo said.

The second prayer seeks to bar the IEBC from gazetting the first respondent as a gubernatorial candidate for Kilifi county.

Odhiambo added that in case of such eventuality, the first respondent would end up on the ballot paper while her academic credentials are questionable.

Omari opposed the request of granting interim orders to bar his client, terming the prayer 'premature', especially after the defence side placed preliminary objections to the case.

Muthee also opposed the petitioners' request and further argued that the court has no authority to hear and determine the matter before it.

"We have filed a preliminary objection and our issue is jurisdiction. We are objecting as to whether this court or even the court in Malindi has jurisdiction to hear this matter or grant any orders in relation thereto," Muthee told the court.

In response, counsel Odhiambo argued that "Article 165 of the Constitution of Kenya 2010 clothes the High Court with original jurisdiction on matters of election."

Furthermore, he said that the IEBC DRC, where the respondents want the matter to be heard and determined, lacks the jurisdiction to determine academic matters of assistants.

"That's a decision which was confirmed in the petition of Nairobi gubernatorial candidate Johnson Sakaja versus the IEBC," he said.

The DRC, while determining Sakaja's degree case on June 19, said IEBC does not have the legal mandate to verify the authenticity of candidates' certificates.

Odhiambo told the court that the petitioners are ready to drop the case the moment the first respondent shows proof of her academic papers.

"If you have a degree don't circumvent through jurisdiction processes. Produce the degree and we will withdraw the case, as simple as that."

Osewe denied granting the conservatory orders sought by the petitioners and directed that the case be heard in the high court in Malindi on Tuesday at 9 am.

(Edited by Tabnacha O)