The High Court will on Wednesday, October 18 rule on whether to dismiss Embakasi East Member of Parliament (MP) Babu Owino’s replying affidavit to a petition filed by a former Jubilee candidate challenging Owino’s victory.
Francis Mureithi had applied to the court, through Ham Lagat and Associates Advocates, to dismiss Owino’s response to the case, which he claimed to have been filed five days after a seven day window allowed in law had elapsed.
Should the court find that the petition was unchallenged, Owino, born Paul Ongili, could lose his seat as a first-time lawmaker, in which case a fresh election could be ordered.
Mureithi also sued Embakasi East Constituency Returning Officer Nicholas Butuk (2nd respondent) and the Independent Electoral and Boundaries Commission (3rd respondent).
Mureithi’s advocate argued – in the notice –, that the respondents were served with the petition on September 8, their failure to discredit the petition meaning that it was undefended and unopposed.
“The respondents have refused, neglected and failed to file their notices of address of service and response to the petition within the prescribed time in law,” the petitioner said of Owino (1st respondent), Constituency Returning Officer Nicholas Butuk and the IEBC.
Lagat said reasons given by Owino in an affidavit before the court was not satisfactory, and as such asked the court to admit their request to struck out the responses or penalise Owino and the IEBC with costs of the case.
“No explanation was given by the respondent (Owino) to explain the delay. He is responsible for the delay. It is a case of negligence by the MP to allege he had not seen an advert in widely circulated newspapers”, submitted Ham Lagat.
In their defense, Owino’s advocates, Jackson Awele and Edwin Sifuna, and an advocate representing the IEBC admitted that they indeed made late responses to the matter on the basis that the service which was done through a newspaper skipped their attention.
The lawyers claimed their clients took note of the service late and made efforts to at least put in a reply.
“It is our submission that the late filing can’t prejudice the petition as our action is reasonable and has a strong basis,” submitted counsel Awele, a stand which was also taken by the IEBC advocate.
Given the fact that election petitions are to be heard and determined within given timelines, Mureithi argues compliance to timelines stipulated in law cannot be overlooked.
Owino had on a September 20 tweet Owino denied failure to file replies, dismissing the then-notice of motion as a rumour.