The Independent Election and Boundaries Commission (IEBC) has asked the court of appeal to strike out an appeal by ODM candidate Isoke Ochoki who lost in last year's August 8 election.
Through appeal papers filed in court, the Nakuru West constituency IEBC Returning Officer Gilbert Serem told the appellant judges that the notice of appeal was filed out of time.
"The appellant herein has failed to file the notice of appeal within the prescribed time and the record of appeal as the file doesn't contain a notice of appeal," said Serem in his affidavit.
The same sentiments were echoed by IEBC lawyer Lawrence Karanja who in his affidavit said that motion of appeal was served after expiry of the 7 days as per the rules of the election appeal.
"The appeal has breached rule 6(2) of the appeal (election petition) rules of 2017 and thus the notice of appeal is out of time and was file in High court." Said Karanja.
David Mongeri who represents Ochoki filed the notice of motion which is dated March 21 and was served upon respondents on March 27.
The judgement upholding the election of Jubilee candidate Samuel Arama was delivered by Justice Mumbi Ngugi on February 22.
The court ruled that the election was free and fair and the issues raised by Ochoki were not evidently supported in the petition.
Mongeri said that the delay to file the notice of motion was as a result of confusion arising out three different set of rules governing elections petitions appeal to the court of appeal.
Arama garnered 29,682 votes against Ochoki’s 25,071 votes and the IEBC maintained that the results gained by the candidates were genuine.
The appeal will be heard by three judges bench presided by Justice Gathurima M'inoti, Justice Fatuma Sichale and Sankale Ole Kantai.