MUTINHIRI v CHIWETU

BHUNU J: Both petitioners Tracy Mutinhiri and Wilson Makanyaire were losing candidates in the recent Harmonised Elections held on 31 July 2013 . They lost to both respondents Jeremiah Chiwetu and Temba Mliswa respectively. The petitioners have since filed petitions seeking the setting aside of the electoral results on account of irregularity. The respondents have raised identical preliminary objections. All the parties concerned have agreed that it is convenient to deal with both objections collectively as one. The respondents' exception has to do with the format of the petitions. They both allege that the petitions are defective and irregular for want of compliance with the provisions of section 167 of the Electoral Act [Cap 2: 13] as read with r 21 of the Electoral Rules.

While preparing judgment in this case I however entertained some doubt as to whether or not the Electoral (Applications, Appeals and Petitions) Rules 1995 Statutory Instrument 74A of 1995 were still valid. I then invited all the legal practitioners concerned to address me on the issue of the validity of the rules in light of the provisions of s 165 of the Electoral Act which tends to suggest that until new rules have been made in terms of that section High Court Rules shall apply with suitable changes deemed necessary by the Electoral Court.

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