14 November 2017

Kenya: Supreme Court Repeat Election Cases - What to Expect

Photo: Capital FM
Supreme Court judges in Uhuru Kenyatta and Raila Odinga's August poll petition case.

Supreme Court judges will sit at 11am for a pre-trial conference before embarking on a marathon hearing of the three petitions in court.

During the pre-trial conference, judges and advocates agree on rules to guide the hearing of the cases, to conclusion. Chief Justice David Maraga, a stickler to time, allocates each of the party time to argue their case. Advocates also agree on the lead counsel.


The petitioners, however, get the biggest time to prosecute their case. After the respondents have made their rebuttals, the petitioners will also get more time to respond on points of law.

There are three petitions which were filed in court after the repeat poll on October 26. Two of the petitions challenge the process and outcome while one of the petitions raises complaints against National Super Alliance leaders and whether they should be held liable for electoral offences.

A petition filed by Njonjo Mue together with Khelef Khalifa, another by former assistant Minister Harun Mwau, are contesting the October 26 poll arguing that the withdrawal of Raila Odinga from the case meant that the poll was void.

Mr Mue and Mr Khalifa argue that the Independent Electoral and Boundaries Commission (IEBC) did not conduct the fresh election in strict conformity with the Constitution and the applicable laws.

"The respondents (IEBC and Wafula Chebukati) action to disregard the withdrawal or abandonment of candidature of 4th Respondent presidential candidate disregarded the unique and special constitutional construct and place of political parties in Kenya's democracy," Mr Mue said in a statement.

Mr Mue said going ahead with the poll deprived Nasa off an opportunity to replace a candidate to face off with other candidates.

Mr Mwau says the poll is void because Independent Electoral and Boundaries Commission (IEBC) failed to subject the candidates to fresh nominations after the August 8 poll was invalidated.

But in response, President Uhuru Kenyatta and IEBC states that there was no need of subjecting candidates to fresh nominations because the court only invalidated the declaration of the results and not the nominations, which were conducted in March.


IEBC team lawyers comprise of Waweru Gatonye as the lead counsel, Kamau Karori, Eric Gumbo, Lucy Kambuni and Wambua Kilonzo.

Chairman Wafula Chebukati will be represented by Kimani Muhoro, Mohat Somane and George Murugu among others.

President Uhuru Kenyatta's team comprise of Fred Ngatia, Ken Ogetto, Katwa Kigen, Tom Macharia and Kimani Kiragu among others.

Nasa is represented by Paul Mwangi while Njonjo Mue and Khelef Khalefa has Julie Soweto and Harun Ndubi as their lawyers. Mr Mwau is represented by Benjamin Musyoki while law Kioko Kilukumi represents Institute for Democratic Governance.

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