BY ISAAC ALUOCHIER
On account of several calls for confirmation of what really is going on, allow me to set the record straight.
On 21st February, 2023 the High Court at Migori nullified the election for Speaker of the County Assembly of Migori, an election held in September 2022, and ordered a repeat election within 21 days. An application for stay of the judgment was made, was granted, and has been renewed a number of times, resulting in the judgment being held in abeyance – on account of review of judgment applications made by the Acting Clerk of the Assembly, and the occupant Speaker of the Assembly.
On 14th February, 2024 the parties entered into a consent vacating the judgment of 21st February, 2023 and referring the dispute initially to court-annexed mediation, and should that not succeed, to court-supervised arbitration. Prior to then, the Acting Clerk had filed additional information in court, being returned nomination papers of 5 of the 8 candidates. Aluochier had already filed copies of his nomination papers as part of his Petition. Likowa had filed copies of his nomination papers as part of his judgment review application. The only candidate’s nomination papers that have not yet been filed in court are those of Francis Ndar.
A mention was held on 4th March, 2024, with the parties requesting that the court adopt the consent as its order, that the dispute be resolved either in mediation or in arbitration. The court refused to adopt the consent as its order, saying that the Court of Appeal had already upheld its judgment of 21st February, 2023 and that it would issue a short ruling on notice on the judgment review applications by the Acting Clerk and occupant Speaker. Upon being asked to extend its stay order on the judgment, the court refused. The court had not yet seen the reasons of the Court of Appeal judgment, which had been issued the previous week. The Petitioner offered to send the court a copy of what he had been sent by the Court of Appeal Registry, and duly sent to the court the same after the mention, and the court registry staff confirmed that the judge had received the copy of the Court of Appeal reasoned judgment.
The effect of the decisions made on 4th March, 2024 is that its judgment dated 21st February, 2023 is now live. Meaning that the election for Speaker of the County Assembly of Migori stands nullified, and repeat elections must be held within 21 days of 4th March – that is by 25th March, 2024.
But that is not the end of the matter. The Supreme Court, in its judgment in Geoffrey M Asanyo & 3 others v Attorney General [2018] eKLR, stated that, pursuant to Article 159(2)(c) of the Constitution, whenever disputants before court enter into a consent, and ask the court to adopt that consent as the court’s order, the court must adopt the said consent, unless the consent is illegal or was procured by fraud. Consequently, the High Court at Migori, being bound by the decisions of the Supreme Court, as per Article 163(7) of the Constitution, should have adopted the consent of the parties before it, and referred the matter for resolution by mediation and/or arbitration. The High Court has been requested to review its decisions of 4th March, 2024 – urgently.
Until such review, if the review will be made, or until the 4th March, 2024 decisions are superseded by a higher court, the September 2022 election for Speaker of the County Assembly of Migori stand nullified, and a repeat election should be held by 25th March, 2024.
I hope the above clarifies the position as it stands at the present point in time.
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