Ousted nominated Senator Isaac Mwaura has filed a second application seeking leave to apply for review orders to compel the IEBC to reinstate him as a person representing persons living with disabilities.
In the application, Mwaura, through lawyer Peter Njagi, says if leave is granted, it should operate as a stay of the implementation of the decision of the electoral agency in respect of the deletion of his position in the Senate.
Mwaura says he has interim injunctive orders dated May 11, 2021 issued by Justice Joseph Sergon prohibiting his name as a nominated senator from being expunged.
He claims that notwithstanding the knowledge and service of the said orders, the IEBC and Senate Speaker Kenneth Lusaka have proceeded to purport his name expunged.
“The respondents if dissatisfied with the interim orders, ought to file for a review, appeal or canvass meritocracy of their case during the hearing of their Case No. HCCA /E248 /2021 scheduled on May 24, 2021,” Mwaura says in court documents.
He says the process of expunging his name was faulty, illegal, high-handed and amounts to the respondents overreach of their statutory powers.
Mwaura says as a matter of law pursuant to Article 105 of the Constitution, the question of recall and/or removal of a senator can only be dealt with by the High Court, not the respondents.
He says the IEBC did not give him any notice of the intended expunge from the list of nominated senators with intent to declare the seat vacant.
Further, he says the IEBC did not provide him with an opportunity to be heard in respect of the complaints presented by Jubilee Party nor did it disclose any information, material or evidence that was to be relied on at the hearing or in the determination.
Mwaura says it was unprocedural for IEBC to make a determination on nomination of a senator without following the procedure under Article 49 of the Constitution.
He says it is also unprocedural for the commission to disguise its decision as a recommendation, as it was apparent that the findings were not recommendations but conclusive determinations contrary to the Fair Administration Act.
“Unless this application is certified as urgent and heard expeditiously, and the orders sought granted, the applicant is genuinely apprehensive that the respondents will proceed and unlawfully expunge the ex parte applicant’s name from the list of nominated senators,” Mwaura argues.
