14 November 2017

Kenya: Supreme Court Locks Out Jubilee, Nasa From Petition

Photo: Jeff Angote/The Nation
Chief Justice David Maraga speaks at the Supreme Court during the pre-trial hearing of election petitions on November 14, 2017.

The National Super Alliance and Jubilee Party were last evening kicked out of the petitions filed at the Supreme Court, challenging the election of President Uhuru Kenyatta.

The judges also suspended from the hearing a case filed by Institute for Democratic Governance (IDG) against Nasa leaders Raila Odinga, Kalonzo Musyoka and Musalia Mudavadi because they said it was not time-bound.

The six judges also expunged from the court records the controversial internal memos obtained from Independent Electoral and Boundaries Commission (IEBC).


Attorney General Githu Muigai was admitted as interested party but his application as amicus curiae, friend of the court, was rejected.

In their determination last evening after the pre-trial hearing, judges headed by Chief Justice David Maraga directed that Nasa cannot be retained as a respondent in the matter and parties to the case were restrained from making any references to Nasa leadership.

They also admitted Dr Ekuru Aukot as an interested party saying that his application meets the criteria.

On the IEBC memos, which turned to be a quick win for Mr Kenyatta, lawyer Mellisa Ng'ania said the documents were obtained illegally and should not form part of the record.


Ms Ng'ania said there is a procedure for obtaining information from public bodies, and that there is no evidence such request was made to the commission by the petitioners.

"They are clearly internal memos. Without such request it is best to assume that they were obtained illegally," she said.

She added that retaining the memos would jeopardise the work of the commission and infringe on the independence of the independent bodies.

The lawyer said had the commission wanted the documents to be in the public domain, they would have been displayed on its website.

The President, through lawyer Fred Ngatia, also wanted some documents filed one day after the deadline struck out of the case.

"I do not need to emphasise that the petition must be filed within seven days, a day which was to expire on the midnight of November 6," Mr Ngatia argued.


The lawyer also wanted an affidavit by James Ngodi in support of the petition by Mr Mue and Mr Khalifa struck out of the petition, arguing that retaining it would cause confusion because it is not part of the record.

"If you remove the documents that were filed out of time, strike out some paragraphs because they speak to the documents in contention," he asked the court.

Mr Kimani Muhoro, for IEBC, supported the removal of the letters from the court record, arguing they were selectively introduced to create a narrative.


The lawyer said the court should abhor such conduct as the memos are inconclusive.

But the petitioners, through lawyer Julie Soweto, explained the difficulties they encountered while filing the documents, pointing out that it was their duty to bring to the court sufficient copies of the petition.

"Justice should be administered without undue regard to procedural technicalities," Ms Soweto said. "This is a procedural technicality."

Wednesday morning the court will formally start the hearing of the three presidential petitions challenging the election of President Kenyatta for a second term.


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