11 October 2017

Kenya: Supreme Court to Rule in Week's Time on Chebukati Role in Oct 26 Poll

Photo: Jeff Angote/Daily Nation
IEBC Chairman Wafula Chebukati.

Nairobi — The Supreme Court will deliver its ruling on an application filed by IEBC Chairperson Wafula Chebukati on the processing of the presidential poll result on Tuesday next week.

At the hearing of the application on Wednesday morning, Chebukati's legal counsel Kamau Karuri told the court that his client is not seeking to lodge an appeal through the back door, but is simply seeking direction on how it expects him to verify the results for the October 26 presidential poll if he cannot make corrections to the statutory forms.

"We are not in any way challenging any of the findings made by the court or any of the findings made in the Maina Kiai case, it is simply a clarification that is being sought," he submitted to Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and judges Smokin Wanjala, Jackton Ojwang and Isaac Lenaola.

Karuri also submitted that it would make a mockery of the election process for Chebukati to declare a result he couldn't defend; aware that there were discrepancies between the result on the polling station result form and that captured on the constituency tally.

"So that we'll be holding the country in a situation where we know that there is a petition that is coming because I read the wrong numbers," Karuri submitted.

Also representing Chebukati, counsel Paul Nyamodi called on the court to clear the way for Chebukati to make corrections where necessary.

"With tremendous respect to the Court of Appeal, it reduced the Chairman's role to a glorified tally clerk. Your lordships have directed that the second respondent must verify... if for whatever reason there is a discrepancy between the aggregate numbers in Form 34A and the number that is filled in Form 34B what then happens?"

Raila Odinga has however opposed the application through lawyer Willis Otieno, who submitted that there is no ambiguity in the court's direction that any discrepancies on the statutory forms should be resolved by the election court. "Nothing stops the Chairman from being a petitioner," he submitted.

Also representing Odinga, Professor Ben Sihanya added that the Supreme Court cannot assume jurisdiction over the matter as the original jurisdiction for interpretation of law lies with the High Court.

“There is no appeal before you or an advisory opinion being sought so the Attorney General’s submission that you possess inherent jurisdiction over the matter, has no merit,” he submitted.

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