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Court rejects Mdee's objection in Kawe petition

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by nngu007, Apr 1, 2011.

  1. nngu007

    nngu007 JF-Expert Member

    Apr 1, 2011
    Joined: Aug 2, 2010
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    THE preliminary objection by the Attorney General to have the election petition by NCCR Chairman James Mbatia revoked was on Thursday overruled by the High Court.

    In the petition, Mr Mbatia is challenging the 2010 parliamentary election results for Kawe constituency in which his opponent Ms Halima Mdee of Chadema won.

    Apart from Ms Mdee, other respondents in the petition are also against the Attorney general, the first respondent and the National Election Commission's (NEC) returning officer for Kawe constituency -- the third respodent.

    In the preliminary objection filed on March, this year, the Attorney general is objecting the petition on the grounds that it was filed more than 30 days after the election results were announced.

    The preliminary objection rose that on November 23, 2010, Mr Mbatia's counsel filed the election petition at the High and paid a file fee of 25,500/- to the registration officer, an amount that was low than the required new one.

    But after the Chief Justice amended the old Election Petition law GL 66 of 1971 and introduced the new law GL 447 of 2010 on November 19, 2010, the file fee rose to 200,000/-.

    Since the claimant in the case, had already deposited 25,500/-, he had to complete the balance which he did, but on December 6, 2010 when 30 days had already elapsed.

    The AG based his argument on this to have the case thrown out on grounds that the petition was time barred.

    However, Judge Utamwa was against the objection, saying so long as the petition was filed within 30 days after the announcement of the general elections, it cannot be void.

    "The payment of the remaining fee 30 days after the election results truly breaches the rules of the election petition law, but so long as there was no obstruction of justice as in this case, the breach is not fatal thus this court overrules the preliminary objection of the Attorney general," Judge Utamwa told the court.

    Meanwhile, the court in the same case upheld the petitioner's counsel prayer to extend the court's time to determine the security cost for the petition.

    The court extended the time to 30 days for it to have determined the security cost because it was not the fault of the claimant's counsel for it to be so even after the legal recommended time of fourteen days had already passed. The case was adjourned to April 11.