The absence of Chief Justice Willy Mutunga caused the much awaited hearing of appeal by Nairobi Governor Evans Kidero to abort yesterday. A six-judge bench of the Supreme Court adjourned the hearing to allow the CJ to be part of the bench following a request by Kidero. The bench extended an order allowing Kidero to remain in office until his case is heard.
The decision to adjourn the case was reached after Kidero said it will be risky for the case to be heard by six judges. He requested that it be handled by seven judges. Through lawyer Tom Ojienda, Kidero said he wants Mutunga, who is the president of the Supreme Court to be present.
The CJ was not available to sit through the hearing yesterday. Kidero said he is worried that if the six in their decision split in half the Appeal Court decision which sent him home will stand.
Former Embakasi MP Ferdinand Waititu said the Supreme Court requires five judges to hear the case so there is nothing wrong with six judges. The judges ruled in Kidero's favour saying they fully appreciate the weighty issues raised in his case.
The judges said the case should be heard by seven Supreme Court judges. Judges Kalpana Rawal, Philip Tunoi, Jacktone Ojwang, Smokin Wanjala, Mohammed Ibrahim and Njoki Ndung'u said their decision will only apply to this specific case.
The case will be mentioned on Tuesday. Kidero's appeal before the Supreme Court arose out of the Court of Appeal's ruling that he was not validly elected in the 2013 general election.
The Court of Appeal held that the High Court erred in upholding Kidero's election without giving his challenger Waititu a fair opportunity to question witnesses, hence suppressing the truth.