President Uhuru Kenyatta's Jubilee Party has sued opposition leader Raila Odinga and his running mate Kalonzo Musyoka at the Supreme Court, accusing them of disobeying court orders by planning to disrupt the October 26 election.
The party wants the two found in contempt of court, an offence punishable by six months in jail.
In an application certified as urgent by the Deputy Chief Justice Philomena Mwilu, Jubilee accuses the National Super Alliance (Nasa) presidential pair of disobeying a court order, which directed the Independent Electoral and Boundaries Commission (IEBC) to conduct fresh elections within 60 days after the court's September 1 judgment.
Jubilee argued that Nasa, which successfully petitioned the Supreme Court to nullify the August 8 presidential election, has "embarked on a calculated scheme, including through use of violence and threat of unlawful sabotage of the elections."
CONTEMPT OF COURT
According to lawyer Tom Macharia, the actions amount to contempt of court and their actions "seriously imperil the efficacy and integrity" of the court order.
Nasa leaders have organised protests demanding the sacking of IEBC chief executive Ezra Chiloba, commissioners Abdi Guliye and Boya Molu, and nine other senior staff, the change of the ballot paper printer and the elections technology provider before the fresh poll.
The electoral commission says it has complied with 20 of Nasa's 34 demands with the rest being either outside its authority or requiring more than is constitutionally available.
"These protests, which have led to destruction of properties and loss of lives, are aimed at creating an environment where it is not possible to hold an election. This is in the hope that the 1st Respondent may succumb to the extortive conduct perpetrated by the Petitioners, fail to organize any elections and plunge the country into a constitutional and political crisis," Jubilee Secretary General Raphael Tuju said in a supporting affidavit filed by Mr Macharia in court.
Mr Odinga called the protests, which have led to the deaths of demonstrators in Kisumu and Siaya, after he wrote a letter to the IEBC, saying he had withdrawn from the October 26 elections and demanding a new poll 90 days after fresh nominations.
On Tuesday, Mr Odinga said he had suspended the protests to mourn those who have died and Nasa asked supporters to attend a Mashujaa Day rally today where he will give direction.
Yesterday, Mr Tuju said Jubilee will not heed to the call to negotiate with Mr Odinga over the fresh poll, asking the IEBC to seek the Supreme Court advice, instead, if there is doubt or ambiguity.
While he argued that the party was free to meet Mr Chebukati to be updated on poll preparations, at no time should those meetings decide on things that the Supreme Court has exclusive jurisdiction upon.
"As a referee, he (Mr Chebukati) cannot call the teams and ask them: Hey guys, when do you want us to hold the elections? What rules should we use? In other words, there is no room for dialogue," Mr Tuju told journalists at the Jubilee Party headquarters in Pangani, Nairobi.
He went on: "The role of the IEBC chair is to be the referee of the presidential election, not the mediator of political contests."
When she certified the application as urgent, Lady Justice Mwilu directed Jubilee to serve the application together with submissions to Mr Odinga and his running mate, Mr Musyoka, by Monday and the two Nasa leaders to file their responses the following day.
The case, she directed, will be mentioned before the Deputy Registrar of the Supreme Court on October 27, a day after the election.
Following a petition filed by Mr Odinga, Chief Justice David Maraga agreed with DCJ Mwilu, Justices Smokin Wanjala and Isaac Lenaola that the electoral agency messed up the transmission of poll results.
"A decision is hereby issued that the elections held on August 8, were not conducted in accordance with the Constitution and the applicable law. The results are therefore invalid, null and void," he ruled. The top court in the land subsequently ordered the IEBC to conduct a fresh presidential election within strict confines of the law in 60 days.
In his affidavit, Mr Tuju said the protests demanding the exit of IEBC officials is meant to intimidate the Commission, so that they do not implement the court order.
The Jubilee official told the court that in compliance with the court directives, IEBC and its chairman Wafula Chebukati gazetted the candidates for the repeat poll and set the election date for October 26.
However, he said, Mr Odinga and Mr Musyoka as well as their agents, including MPs under their directions, are engaging in making obnoxious threats and use of insolent language against the Commission.
"The petitioners are hell-bent and intent on creating serious impediment to the 1st and 2nd Respondents preparation for a fresh election as ordered," he said and urged the court to grant them the orders sought "as it is imperative for the maintenance of the rule of law and good order that the authority and dignity of this Court is upheld."
The Jubilee secretary general said he is apprehensive that the Nasa leaders will continue with their actions, thereby prejudicing the other candidates and the people of Kenya as a whole.
It was his argument that Mr Odinga and Mr Musyoka have conducted themselves maliciously, without any regard for the rule of law and sanctity of judicial process.