Africa-Press – Kenya. Wiper nominated MP Abubakar Ahmed Talib won’t rest easy yet after a petitioner appealed a court decision that cleared him to be sworn in as a member of the National Assembly.
Lucas Mulinge Wambua has asked the Court of Appeal to overturn a High Court decision that upheld Talib’s nomination, arguing that the court relied on a nomination list that did not exist.
The Mombasa businessman’s nomination has been the subject of protracted litigation. He was sworn in last week.
At the heart of the conflict is a confusion that saw IEBC reject nomination lists forwarded to it by all political parties on July 15 for want of various requisites.
In that initial list, Talib was designated at number one.
But when the second list was forwarded by the Kalonzo Musyoka-led party, dated July 22, the name of Talib was omitted and replaced by Wambua at position one.
Talib unsuccessfully challenged the list at the Political Parties Dispute Tribunal.
His recourse to the High Court succeeded. He claimed that the party’s decision to replace his name without due process was unlawful. The court agreed with him.
He argued that upon rejection of the first list, the party generated a new one and sent it to IEBC on July 21 in which his name was maintained at number one, and got accepted.
The court upheld the July 21 list as the valid and legal one.
However, Mulinge argues that once the first list was rejected by the electoral umpire, the party called for fresh applications which he did and asked to be considered under the ethnic minority category. He also asked to be exempted from the monetary conditions that the party put.
He claims that Talib did not apply for the position and hence could not be put on the list.
Further, Mulinge argues that the only valid second list he was aware of was the one dated July 22, suggesting that the July 21 one referred to by Talib was a forgery.
He says that once the first list was rejected, Talib is referring to a non-existent list where his name is designated at number one because he was not included in any other document.
“The learned judge erred in law and in fact in finding that the purported list of July 21 was legal and valid, yet there was no evidence that the said purported party list was ever submitted to the 5th respondent (IEBC), reviewed and approved in line with section 34 (6) of the Elections Act and the Regulation 55 of the Elections (General) regulations of 2012,” he argues in his court papers.
He had sought that the court bars the IEBC from gazetting his name after the High Court judgment in vain. He now says he will pursue the appeal, even after National Assembly Speaker Moses Wetang’ula swore in Talib.
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