Month: December 2014

CORD BID TO BLOCK TOUGH SECURITY LAW FLOPS.

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Coalition for Reforms and Democracy is a coalition (CORD) leader Raila Odinga, Kalonzo Musyoka and Bungoma County Senator Moses Wetang’ula addressing journalist outside Milimani law courts after the court directed them to serve the Attorney General and come for inter-parties Wednesday morning, December 24, 2014.
BY SMART SAM NEWS TEAM

THE Coalition for Reforms and Democracy (CORD),comprising of the Orange Democratic Movement, the Wiper Democratic Party and the Forum for the Restoration of Democracy, Suffered round one blow while seeking ex-parte orders to suspend the newly enacted security laws.
Through lead Senior Counsel James Orengo who doubles up as the Senator for Siaya County (ODM), and lawyer Antony Oluoch the coalition filed their case before Justice Isaac Lenaola who certified the matter urgent.
Lenaola directed that the respondent; Attorney General and the Republic of Kenya, be served with the suit papers and both parties appear for an inter-parties hearing Wednesday, on the eve of Christmas day.
CORD leader Raila Odinga, Moses Wetangula (FORD-K), Amos Wako (Busia Senator) were among the top leaders who sat in the court room when the matter was filled on Tuesday, December 23, 2014.
The CORD fraternity is seeking orders to stop the implementation of the security laws that President Uhuru signed into law and have since been published in the Kenya Gazette.
“The Security Laws (Amendment) Bill 2014 was not referred to the Speaker of the Senate by the Speaker of the National Assembly after it was passed by the National Assembly,” Orengo told the court.
He castigated the Speaker of National Assembly Justin Muturi for not referring the laws to the senate.

“The Speakers lost control of the proceedings in the House and acted in a partisan and bias manner and there was no decorum and dignity in the National Assembly and freedom of speech and debate,” judge Lenaola was told.
Orengo told court that the speaker violated the law by forwarding the laws for assenting by the president, before the senate could deliberate on them.
“Serve and come for inter-parties hearing tomorrow at 11.30 in the morning. The applicant will not suffer any prejudice if the stay orders are not granted immediately,” Judge Lenaola said.
Senior Counsel Orengo argued that the government was keen in returning the county to a one party state through the new security laws. “The laws were passed in a chaotic environment coupled with violation of the standing orders,” he said.
In the turn of events, the efforts of the application seeking orders before government is served were thwarted, after the judge noted that there was no enough demonstration to issue such a request.
The CORD fraternity argues that the President of the Republic of Kenya had acted in a manner that does not respect, uphold and safeguard the Constitution of Kenya.
“The president has an obligation to promote and enhance the unity of the nation; and to ensure the protection of human rights and fundamental freedoms and the rule of law,” read part of the suit.
The applicants also said that public participation was restricted because the time allocated was inadequate and committee meetings were held at odd times in contravention of Article 118 of the Constitution of Kenya.
CORD wants the court to make a finding that the Security Laws (Amendment) Bill 2014 as passed and assented to and the Security Laws (Amendment) Act contravene the Constitution of Kenya and violate the Bill of Rights and are both, each and all therefore null and void.
The court has been asked to make a determination that the conduct of the National Assembly in unilaterally considering and passing the Security Laws (Amendment) Bill without involving the Senate undermines the architecture and legal structure and framework of the legislature.

Grey areas
The case has outlined a number of grey areas including section 5 of the Security Laws (Amendment) Act 2014 and Section 9 of the Public Order Act which CORD says are inconsistent with and contravenes Articles 238 and 239 of the Constitution of Kenya.
The coalition hold s that a Cabinet Secretary is not a member of any of the national security organs and therefore would not be obligated to comply with the principles of national security organs .
Also, the court has been invited to see that the provisions contained in Section 66A (2) of the Penal Code are oppressive and are inconsistent with and contravenes Articles 28 and 29 of the Constitution.
According to the applicants, the penal code now allows for the trial, punishment and conviction of a person who had no knowledge of ongoing investigations or security operations of the National Police Service or the Kenya Defence Forces.
They said that Section 25 of the Security Laws (Amendment) Act and Section 18A of the Registration of Persons Act are inconsistent with and contravene Articles 12, 14 and 24 of the Constitution and to the extent that it is not reasonable and justifiable for a person who is a Kenyan citizen by birth to be denied a passport or other document of registration
Judge Lenaola said the orders can still, however be granted during the inter-parties hearing.
The case will be heard inter-parties Wednesday morning, December 24, 2014.

COMMUNICATION AUTHORITY OF KENYA GIVEN 24HOURS TO CANCEL JOB ADVERT.

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Senior Counsel Professor Tom Ojienda for the staff of the defunct Communication commission of Kenya (CCK) leaving Milimani law court after defunct Communication commission of Kenya was directed to advertise a notice cancelling advertisements that announced vacancies within the organization.

BY SAM ALFAN.

Industrial court has directed the Communications Authority of Kenya to advertise a notice cancelling advertisements that announced vacancies within the organization.
Justice Nzioka Makau sitting in Nairobi also issued orders restraining CAK from interfering with their employee’s positions and ranks and from taking further steps to rename, modify, restructure or scrap the positions of Director, Radio Frequency Spectrum; Director, Legal Services and Commission Secretary; Director, Finance and Accounts Among others.
The Judge said the advertisement should be done within the next 24 hours. The order comes after the Communication workers union moved to court to challenge the renaming and modification of their positions within the organization.
The staffs moved to court yesterday through their lawyer professor Tom Ojienda challenging the Communications Authority of Kenya’s decision to declare 30 senior management positions vacant in a move the regulator claims is provided for following its transition from the Communications Commission of Kenya.

CUWU on Tuesday moved to the Industrial court expressing uncertainties that they may be rendered unemployed or subjected to reduced remuneration if the board goes ahead to implement the new structure.
Communications Workers Union (COWU) has claimed in a suit lodged against CA that the law provides for the regulator to retain any staff that was working for it at the time of the promulgation of the Constitution.
The Union faulted the Board that by the mere fact that it was interviewed and hence they would like to advertise and carry out interviews for positions currently occupied by staff was a breach of their employment terms.
Through Senior Counsel Professor Tom Ojienda, CUWU said section 41(2) (a) of the Kenya Information and Communications (Amendment) Act No. 41A of 2013 had itself provided for transition of the said staff.
The communication authority of Kenya board of directors renamed the positions held by the petitioners without any legal procedure.
The board is accused of suspending any provision of its Human Resource Policies Manual that conflicts with the renaming process notwithstanding that the Manual is part and parcel of the CCK Contracts of Service with its employees and can thus be only suspended upon mutual consent with the affected employees.
CUWU alleges that the positions of the rest of the staff in the organization remain uncertain without any clear communications to such staff hence causing anxiety in the organization about the possibility of also being declared redundant.
The workers said: “All processes arising from any such Advertisement are superfluous, null and void for all intents and purposes.”
They seek to stop the CAK from recruiting new staff to the newly created positions. About 29 staff, according to the court records will be affected with the decision of the board of director to change the structure of CAK management.
The petitioners argue that the new structure merely changes the nomenclature of Director to Chief Manager and the Assistant Director to Senior Manager and introduces 3 new positions of General Manager.
The petitioners want the action by CAK board of directors to advertise the positions of its employees serving in the positions of Director and Assistant Director be declared a breach of the employees’ rights as provided in the law.
“If this flawed process by the Respondent is allowed to stand, the rest of the staff, including ‘Unionisable’ employees will be adversely affected since it will trickle down to all employees of the Respondent,” Professor Ojienda outlined in the petition.
The aggrieved staff says that they have neither been notified nor was the Labour Office of the decision to render the employees of the CAK.
About 29 staff, according to the court records will be affected with the decision of the board of director to change the structure of CAK management.
The CAK Board Chairman, is accused of insubordination, the petitioners say his role is to play the policy oversight has since advertised the positions thereby taking over the role of the Director General, who is the accounting officer.
The case will be heard on January 12 2015 for further directions.

EX-CCK STAFF SUE NEW EMPLOYER OVER RANKS.

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Senior Counsel Professor Tom Ojienda for the staff of the defunct Communication commission of Kenya (CCK) has moved to court to defend their jobs.

By SMART SAM NEWS TEAM
A bruising legal tussle has kicked off in the Industrial court in Nairobi after the staff of the defunct Communication commission of Kenya (CCK) has moved to court through their Senior Counsel Professor Tom Ojienda to defend their jobs.
Senior directors of (CCK) now known as Communication Authority of Kenya (CAK) led by Benson Okumu under a banner Communication workers Union (CUWU) moved to the Industrial court in an urgent petition Monday, after their jobs were advertised in the Daily Nation last week.
CUWU accused the CAK of terminating their contracts without consent. They said that they were to be automatically absorbed by the CAK under the new Kenya Information and Communication (KICA 2014 Bill) that was signed in to law.
The staff wronged a statement from CAK Chairman pursuant to the meeting of the Board of Directors of the December 3, 2014 indicating that restructuring of the ranks was due to the change in the law and rebranding.
The Union faulted the Board that by the mere fact that it was interviewed and hence they would like to advertise and carry out interviews for positions currently occupied by staff was a breach of their employment terms.
Through Senior Counsel Professor Tom Ojienda, CUWU said section 41(2) (a) of the Kenya Information and Communications (Amendment) Act No. 41A of 2013 had itself provided for transition of the said staff.
The communication authority of Kenya board of directors renamed the positions held by the petitioners without any legal procedure.
The board is accused of suspending any provision of its Human Resource Policies Manual that conflicts with the renaming process notwithstanding that the Manual is part and parcel of the CCK Contracts of Service with its employees and can thus be only suspended upon mutual consent with the affected employees.
CUWU alleges that the positions of the rest of the staff in the organization remain uncertain without any clear communications to such staff hence causing anxiety in the organization about the possibility of also being declared redundant.
The workers said: “All processes arising from any such Advertisement are superfluous, null and void for all intents and purposes.”
They seek to stop the CAK from recruiting new staff to the newly created positions. About 29 staff, according to the court records will be affected with the decision of the board of director to change the structure of CAK management.
The petitioners argue that the new structure merely changes the nomenclature of Director to Chief Manager and the Assistant Director to Senior Manager and introduces 3 new positions of General Manager.
The petitioners want the action by CAK board of directors to advertise the positions of its employees serving in the positions of Director and Assistant Director be declared a breach of the employees’ rights as provided in the law.
“If this flawed process by the Respondent is allowed to stand, the rest of the staff, including ‘Unionisable’ employees will be adversely affected since it will trickle down to all employees of the Respondent,” Professor Ojienda outlined in the petition.
The aggrieved staff says that they have neither been notified nor was the Labour Office of the decision to render the employees of the CAK.
About 29 staff, according to the court records will be affected with the decision of the board of director to change the structure of CAK management.
The CAK Board Chairman, is accused of insubordination, the petitioners say his role is to play the policy oversight has since advertised the positions thereby taking over the role of the Director General, who is the accounting officer.
The case will be heard on Tuesday Morning of 22 December, 2014 before duty judge Nzioka Kamau.

JUDICIAL VETTING WAS LIMITED TO COMPLAINTS MADE BEFORE NEW CONSTITUTION WAS ENACTED.

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Kenya Magistrates and Judges Association secretary general Kibera law court Principal Magistrate Eric Khaemba and her Milimani law court counterpart Resident Magistrate Miriam Mugure outside Supreme Court upheld a decision by the Court of Appeal.

BY SAM ALFAN.
Supreme Court has upheld a decision by the Appellate Court judges  that ruled the Judges and Magistrates Vetting Board had no mandate to consider complaints against judges and magistrates arising after the promulgation of the constitution.
The five judge bench lead by chief justice Willy Mutunga, Kalpana Rawal, Philip Tunoi and J.B Ojwang ruled that he board has no jurisdiction to investigate matters relating to judges and magistrate after the promulgation of the constitution of 2010on the basis o that the transition period was limited to old constitution.
Kenya Magistrates and Judges Association had moved to high court seeking whether the vetting board has a jurisdiction to investigate their professional conduct after the old constitution, where they won the case that prompted the board to move to the higher court.
The vetting body said they can only make such a momentous determination on the basis of what the Judge or Magistrate is alleged to have done or omitted to do during his tenure in office before the constitution of 2010., for it is his actions or omission that will determine whether he or she is to be vindicated or condemned.
“We find and hold that the Judges and Magistrates vetting board in execution of its mandate as stipulated in section 23 of the sixth schedule to the constitution of 2010 can only investigate the conduct of Judges and Magistrates who were in office on the effective date on the basis of alleged acts and omissions arising before the effective date, and not after the effective date, “said the bench.
The Judges held that the Board could not have investigated misdeeds that occurred after promulgation of the constitution.
They also questioned on what basis can the vetting board determine that a judge and magistrate who was in office on the effective date is suitable to transit from the old constitutional order to the new one.
The Kenya Magistrates and Judges Association filed the case in High court seeking a declaration that the vetting board cannot lawfully investigate the conduct, acts, omissions and information on part of a judicial officer purportedly arising after the promulgation of the constitution on 27 August 2010.
In her judgment, Justice Mumbi Ngugi on March 26 declared that the Board in the exercise of its functions as stipulated under section 23 of the sixth schedule to the constitution of Kenya 2010 could not determine the suitability of judicial officers based on the acts or conduct that occurred after the promulgation of the constitution.
Aggrieved by that decision, the Judges and Magistrates Vetting Board and the Attorney General filed an appeal in court of appeal.
In a judgment dated July 11 the learned judges of appeal concluded that the High court rightly held that the board had no mandate to consider complaints against judges and magistrates arising after the promulgation of the constitution.
The court of appeal affirmed that it was the JSC that had legal mandate to investigate allegations of misconduct of judicial officers purportedly committed after the 27 August of 2010.
Speaking to journalist after the supreme court decision, the body secretary general Eric Khaemba who is Kibera law court Principal Magistrate said their Christmas has started early after a long time of legal battle with the vetting board.
He further added that, the judges and magistrate will continue serving Kenyan in the fully reformed judiciary.

MP KALUMA LAND FRAUD CASE HAS BEEN CONSOLIDATED.

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Homa Bay MP Peter Kaluma at Milimani Law court during the mention of his alleged land fraud case facing him on Wednesday 30/07/2014.
BY SAM ALFAN.
Homabay Member of Parliament Peter Kaluma’s case of land fraud has been consolidated together with that of Florence Kibera who is accused of conspiring to defraud two business people among them former British attorney George Sphikas of more than 16 million shillings.
In the case prosecution intends to bring 31 witnesses among them a person residing in Malawi. Homabay MP few months ago pleaded not guilty to three land fraud charges.
It is alleged that on diverse date between 26 January and 29 February, 2012, at unknown place within Nairobi jointly with others not before court, offered to sell land parcel No.5892/2 measuring one acre in Karen valued at Shs10million to Deborah Achieng Aduda.
The MP is further accused of obtaining Ksh.313, 000 between February 29 and April 17, 2012 from American attorney Constantine George Sphikas by offering to lease the land to him. He is alleged to have offered the same land for sale to Sphikas for Sh6.9million between February 28 and May 22, 2012.
He denied the three counts before Nairobi Chief Magistrate Annah Ndungu and was directed to post Sh50, 000 cash bail.
Florence Kibera who is accused of conspiring to defraud two business people among them former British attorney George Sphikas of more than 16 million shillings was arrested after the court ruling.
Few months ago Kaluma unsuccessfully applied for the disqualification of Ndung’u after lawyer Harun Ndumbi accused the magistrate of alleged bias. But she said there were no compelling reasons to justify her recusal.
The Homa Bay MP had appeared in court in the morning but declined to plead to nine counts of fraud in which he is accused of defrauding Deborah Achieng and Rene Johny Dierkx over a parcel of land situated in Karen, Nairobi.
State counsel Eddie Kadebe asked Kaluma to take his plea but he declined and through his lawyer he asked the court to make a determination since the prosecution had not tabled in court the High Court order issued by Justice Weldon Korir directing Kaluma to plead to the charges.
There was a heated exchange and altercation on Wednesday between the magistrate and Ndubi and at one time he asked the magistrate to record his submissions so that his protest can go on record.
“It appears to the defence that the magistrate is clearly biased against the suspect despite our preliminary objection on the inadmissibility of the charges leveled against my client. The court cannot therefore proceed to give directions that seem to determine the outcome of this case.” Ndubi.
The lawyer further said that, “When the court demands that the suspect should take plea yet the defence has stated that the charge sheet has failed to have particular details then the court has failed to allow a fair trial and I ask the magistrate to disqualify herself from this matter,”
Ndubi said it was prejudicial for the magistrate to state that the MP had used his status to delay the case. Ndubi accused the prosecution of not supplying the defence with all the evidence that it seeks to rely on during trial.
He said it was prejudicial for the chief magistrate to state that Kaluma has used his status to delay the case.
However the state counsel said the accused was at liberty to contest the effectiveness of the charges at any time once the accused takes his plea saying the ruling by the magistrate that the accused pleads to the charges was in good faith.
“It is still the prosecution’s position that the charges presented in court are correct and the averments by the defence lawyer are not properly before this court”. Said Ndubi.
The magistrate directed the matter to be heard from 3 to 7 of November 2014.

The case has been in court for several years.
Milimani Chief Magistrate Hannah Ndung’u declined to excuse herself from hearing the alleged land fraud case facing Homa Bay MP Peter Kaluma.This is after his defence Wednesday accused the magistrate of bias.
In her ruling, Chief Magistrate said there were no compelling reasons given by the defence in their application seeking her excusal from the matter apart to the alleged bias by the defence.
“Despite of my court taking the plea it doesn’t mean I will be the trial court”. Said the Magistrate in her ruling.
Kaluma on Wednesday asked Mrs Ndung’u to throw away the charges leveled against him saying the charges were defective.
The Homa Bay MP had appeared in court in the morning but declined to plead to nine counts of fraud in which he is accused of defrauding Deborah Achieng and Rene Johny Dierkx over a parcel of land situated in Karen, Nairobi.
State counsel Eddie Kadebe asked Kaluma to take his plea but he declined and through his lawyer he asked the court to make a determination since the prosecution had not tabled in court the High Court order issued by Justice Weldon Korir directing Kaluma to plead to the charges.
There was a heated exchange and altercation on Wednesday between the magistrate and Ndubi and at one time he asked the magistrate to record his submissions so that his protest can go on record.
Earliar in her ruling the magistrate directed Kaluma to plead to the nine counts of fraud charges but he declined.
Defence lawyer Harun Ndubi urged the magistrate to disqualify herself from the case accusing her of bias and ‘holding brief’ for the prosecution.
“It appears to the defence that the magistrate is clearly biased against the suspect despite our preliminary objection on the inadmissibility of the charges leveled against my client. The court cannot therefore proceed to give directions that seem to determine the outcome of this case.” Ndubi.

The lawyer further said that, “When the court demands that the suspect should take plea yet the defence has stated that the charge sheet has failed to have particular details then the court has failed to allow a fair trial and I ask the magistrate to disqualify herself from this matter,”
Ndubi said it was prejudicial for the magistrate to state that the MP had used his status to delay the case. Ndubi accused the prosecution of not supplying the defence with all the evidence that it seeks to rely on during trial. He said it was prejudicial for the chief magistrate to state that Kaluma has used his status to delay the case.
However the state counsel said the accused was at liberty to contest the effectiveness of the charges at any time once the accused takes his plea saying the ruling by the magistrate that the accused pleads to the charges was in good faith.

COURT REINSTATE UDF SUSPENDED MEMBERS.

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United Democratic Forum chairman Hassan Osman (right), with party’s 1st vice chair Nancy.

BY SAM ALFAN.
UDF leader Musalia Mudavadi has suffered a major blow after the Political Parties Dispute Tribunal reinstated expelled Hassan Osman as the United Democratic Forum (UDF) Chairman.
Political Parties Dispute Tribunal has quashed the decision of United Democratic Forum its national governing council meeting did not have the mandate to expel the national chairman and national executive committee members.
The tribunal chairman Mr Kyalo Mbuba said that National Executive Council held on 16 September 2014 which came up with the resolution to expel Mr Hassan Osman who he is nominated MP was irregular and illegal
He said in the judgment that UDF has political does not have internal dispute resolution committee in their constitution where by dispute involving the Party leader Musalia Mudavid and the national chairman should have been referred to for arbitration.
” The NEC meeting was not properly constituted as provided for under the Party constitution” Mr Mbuba said.
At the inception of the dispute before the tribunal issued an order restraining the Registrar of Political Party (RPP) from removing names of four members expelled by UDF
. The Tribunal also issued the order barring Mudavadi,his deputy Jeremiah Kioni, Petronilla Were and Kassim Sawa from conveying any meeting of the National Governing Council and National Delegates Congress.
Three UDF Nairobi County officials Wycliffe Oyondi Okeo, Caroline
Muthoni Boy and Pauline Achieng Abetto moved to court seeking orders
to bar RPP from effecting changes pursuant to the meeting held on
16 September 2014
Tribunal chairman Kyalo Mbobu said pending the hearing and
determination of the application the expulsion of Senators Bonny
Khalwale (Kakamega), Martha Wangare (nominated) and party chairman
Hassan Osman (nominated) by the party National Delegate Conference
should not be effected.
Delegates of UDF had endorsed the expulsion of senators Khalwale and Wangare from the party.
The National Delegates Conference (NDC) also approved the expulsion and
suspended party chairman Osman and replaced him with Webuye MP
Alfred Sambu.

COURT BLOCK HOMA BAY SENATORIAL NOMINATIONS FOR 10 DAYS.

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A man cought on camera destroying ballot box amongthose who disrupted and destroyed nomination materials resists arrest by security officers on Monday, December 15, 2014.

BY SAM ALFAN.
High court Judge George Odunga has stopped the decision by Independent Electoral and Boundaries Commission (IEBC) a directive by the IEBC requiring parties to nominate candidates for the Homa Bay senatorial by-election by Friday this week.
Judge George Odunga stopped the nominations for ten days saying that the commission ought to have given a reasonable time to allow parties’ nominate their flag bears on the February Homa bay senatorial by election
Justice Odunga allowed the petitioner to file the notice of motion within three days from today.
The court order comes as Orange Democratic Party ( ODM) member moved to court seeking to have the nomination exercise for the position of Homabay Senator stopped until the seat has been declared vacant.
Kenneth Ogalo wants the Senatorial seat declared vacant before the Independent Electoral and Boundaries Commission (IEBC) can request parties to submit the names of their nominees.
IEBC wants parties to submit their selected nominees by Friday, December 19 and Ogalo maintains that the exercise should be stopped until the seat is declared vacant.
He says that the decision by IEBC to fix dates for nominations without following due process is unconstitutional, adding that the expectations of the people of Homabay County will be violated.
He further argues that the time given to submit nominations and for the exercise itself is too short adding that it was done without consulting the people.
“Political parties have not been given adequate time to prepare and carry out credible nominations and print ballot papers,” Ogalo says in his petition.
He further argues that the conduct by IEBC is unprocedural and inconsistent and they have failed to hold consultations with the political parties through the Political Parties Liaison Committee.
The rights of the Homabay people, he further states, will be affected as they will now choose their candidate through the delegates system instead of the universal suffrage as in article 38 of the constitution.
The Homabay Senatorial seat was left vacant after the passing of Senator Otieno Kajwang on November 18 at the Mater Hospital in Nairobi, after suffering a cardiac arrest. He was buried a week later at his home in Homabay on November 28.
The youths destroyed ballot boxes and warned exercise coordinator Peter Adoyo of dire consequences if a candidate was imposed on them.
They said Ruaraka MP Tom Kajwang should not meddle in the region’s affairs as he is not a registered voter in the county, further accusing him of imposing his brother Moses Otieno Kajwang on them.
Police shot in the air to disperse the youths and arrested several of them.
Homa Bay MP Peter Kaluma blamed the IEBC for the abortive exercise saying that the December 19 date for the by-election did not allow the party enough time to hold nominations.
Kaluma said ODM will ask the IEBC dispute resolution tribunal to extend the nominations period, in effect postponing the by-election.
He further urged the party to allow its members to elect their preferred candidate as the delegates method had failed.
The youths had earlier forced their way into the county assembly hall, breaking a gate in the process, prompted by Caroli Omondi’s ‘suspicious’ presence at the venue before the start of the nomination process.

The matter will be heard on 14 of January 2014 before the duty judge.