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Epic court battle takes shape: Will the real Hamida stand up?

PETITION: Did ODM mistake Hamida Haji for Hamida Muhidin?

Hamida Muhidin wants the court to declare that the gazettement of Hamida Haji as an MCA was illegal, unlawful and unconstitutional

What’s in a name? Everything, it seems, as two women — both named Hamida — lock horns over who was the correct nominee for a Member of County Assembly seat in Kajiado.

When the matter comes up for hearing on January 25, Kajiado Senior Resident Magistrate Vicky Kachuodho will listen to persuasive submissions by competing counsel — with one side rooting for serving MCA Hamida Yare Haji and the other the petitioner, 43-year-old Hamida Ahmed Muhidin.

With election petitions having been given a timeline of six months for hearing and determination, the court will have the unenviable task of employing Solomonic wisdom in deciding who between the two claimants should rightfully be the MCA.

Hamida Muhidin wants the court to declare that the gazettement of Hamida Haji as an MCA was illegal, unlawful and unconstitutional. She is asking the court to declare that gazettement by the Independent Electoral and Boundaries Commission (IEBC) null and void, and to order the Clerk and Speaker of the Kajiado County Assembly to swear her into office.

“This is a fraud that was prevalent across the country,” said Muhidin. “I have left this matter in God’s hands. This is someone who didn’t know anything about Kajiado. I went round the county campaigning. I had never seen her or heard of her. She is not even a voter in Kajiado.”

Apart from Haji, the other respondents in the case are the Orange Democratic Movement (ODM), IEBC, and both the Clerk and Speaker of the Kajiado County Assembly.

Party squabbles

The dispute appears to have been brewed in intra-party intrigues of ODM during the period preceding the August 9 general election, finally spilling over into the courts. In her petition, Ms Muhidin says she applied to be nominated through ODM for an MCA gender special seat in the Kajiado County Assembly. Her name was published by IEBC in The Standard newspaper of  July 27, 2022.

Interestingly, her name appeared as the seventh entry on that list, while that of Haji was third on the same list. With nominated slots allocated according to party strength in the county assemblies after the general election, ODM was allocated four slots in Kajiado, which ensured that Haji got a slot while Muhidin was left out.

The inclusion of Haji’s name, Muhidin told the Kajiado Star, was influenced by a top ODM official who is Haji’s close relative. “My name was put forward by the Kajiado governor [Joseph ole Lenku]. The official at the ODM National Elections Board (name withheld) created the confusion to assist his relative.”

However, the petitioner avers that Haji is not a registered voter in Kajiado County, arguing that this disqualifies her from being nominated for the seat. Apparently, Haji is registered as a voter at Shantoley Primary School in Rhamu Ward of Mandera County.

Precedent

Through her advocates Naikuni, Ngaah and Miencha Advocates, Muhidin has drawn the attention of the court to the case of Victoria Cheruto Limo and Another versus IEBC, in which the court said in its verdict that Limo, “being a registered voter of Uasin Gishu County was not qualified and not validly nominated to fill the gender top-up position in the Garissa County Assembly.”

It remains to be seen whether the court in Kajiado will be persuaded to follow this precedent.

Haji’s lawyers, Ndegwa and Ndegwa Advocates, first tried to have the matter struck out for want of prosecution, saying their client had neither been served personally nor through a newspaper advertisement. This application was dismissed, with the magistrate noting that the respondent had been served on the WhatsApp platform through her telephone number. “The applicant has pegged her application on the old jurisprudence of personal service, which I find has been discarded over time with the underlying principles of ease of service.”

Despite this setback, the defence lawyers are putting up a spirited fight on behalf of Haji. Her lawyers have quoted precedents in their favour, arguing that pre-election matters ought to have been raised and determined before the IEBC well ahead of the general election. They therefore challenge the jurisdiction of the court in entertaining the petition.

Haji’s lawyers further argue that persons nominated as MCAs need not be registered voters in the county in which they are nominated, but only need to be eligible to vie for the position of an MCA in that county. Ms Haji claims to be a resident of Kitengela town in Kajiado County.

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