17 August 2017

Kenya: CJ Maraga Faces Biggest Case Since Being Sworn in

Photo: Daily Nation
Justice David Maraga.

Kenya opposition National Super Alliance (Nasa) has until Friday to file its presidential election petition, kick-starting a 14-day process in the Supreme Court.

It will also be Chief Justice David Maraga's biggest case yet since he was sworn in in October 2016.

He took the oath of office with his deputy, Lady Justice Philomena Mwilu, and Justice Isaac Lenaola, joining judges Mohamed Ibrahim, Jackton Ojwang', Smokin Wanjala and Njoki Ndung'u who arbitrated a similar petition in 2013.

The planned petition by Nasa challenging the IEBC declaration of President Kenyatta as the duly-elected president comes just a month after CJ Maraga gazetted new rules to guide the petition this year.

In the rules, Nasa will need Ksh1 million ($9,600) as deposit to file the petition in the court, as security for the costs, and a further Ksh500,000 ($4,800) upon lodging the petition, in the case that Mr Odinga says will shape history.

"Our decision to go to court constitutes a second chance for the Supreme Court. The court can use this chance to redeem itself, or, like in 2013, it can compound the problems we face as a country," Mr Odinga said in his address on Wednesday.

Serve respondents

After filing the petition, Nasa will have two days within which to serve the respondents, who in this case are President Kenyatta, his deputy William Ruto, the Independent Electoral and Boundaries Commission (IEBC) and chairman Wafula Chebukati in his capacity as the presidential election returning officer.

Upon being served, the respondents will have four days within which to file their responses, according to the Supreme Court (Presidential Election Petition) Rules, 2017.

This will in turn pave the way for a pre-trial conference on the eighth day after filing a petition, where the court and parties will frame contested and uncontested issues in the petition, consider consolidation in cases of more than one petition.

The court will be expected to direct IEBC on handling of election materials and documents relevant to the case.

After the pre-trial conference, unless determined otherwise by the court, the hearing of a petition shall proceed uninterrupted on a day to day basis until its conclusion.


It is imperative to note that the 14-day period, which starts once a petition which must be filed by Friday has been lodged, is counted inclusive of weekends.

"There is general consensus that the 14 days allocated to determine a presidential election petition is not sufficient. JCE and other stakeholders made proposals to increase that period to 30 days.

"However, the Supreme Court will be ready to determine such a matter within the constitutional deadline. We are ready for both scenarios," Mr Justice Maraga told Nation in a past interview.

The court may uphold the election of President Kenyatta like it did in 2013, or declare it invalid and order fresh elections, which must be held in 60 days after the ruling.

The decision of the Supreme Court is final and cannot be challenged in any other court.

The court may, like it did in 2013, give its decision but may reserve its reasons for the decision to a date not later than fourteen days.


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