20 November 2017

Kenya: Supreme Court Upholds Oct 26 Re-Election of Uhuru Kenyatta

Photo: Jeff Angote/Daily Nation
From left: Supreme Court judges Njoki Ndung'u, Smokin Wanjala, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang' and Isaac Lenaola prepare to preside over the election petition case at the Supreme Court on November 16, 2017.

The Supreme Court has in a unanimous decision, dismissed the petitions challenging the validity of the October 26 presidential election.

The bench in a oneness of mind, found that the two separate petitions, that of Harun Mwau and that of Khelef Khalifa and Njonjo Mwau, failed to show that the poll was so fundamentally flawed to warrant a nullification.

“The court has unanimously determined that the petitions are not merited and the final orders are that the petition by John Harun Mwau versus the Independent Electoral and Boundaries Commission and two others as consolidated is hereby dismissed.”

“The petition by Njonjo Mue and another versus the Chairperson of the Independent Electoral and Boundaries Commission and three others as consolidated is also hereby dismissed. As a consequence, the presidential election of October 26 is hereby upheld as is the election of Uhuru Kenyatta,” Chief Justice David Maraga communicated.

And while the bench has 21 days to deliver its full judgement, the preparation of the petitions themselves, is likely to have contributed to their dismissal on account of the questions raised by the judges during their hearing last week.

Justice Jackton Ojwang for instance questioned the manner in which Mue and Khalifa sought to introduce IEBC Commissioner Roselyne Akombe’s resignation letter into evidence.

“Can you vouch for the validity or the veracity of that statement yourself or any other person without the person who pronounced it, speaking to that? (by way of affidavit evidence),” he challenged their legal counsel Julie Soweto as she made her oral submissions.

Chief Justice David Maraga in the course of submissions, also faulted Mue and Khalifa’s lead counsel Harun Ndubi for failing to include in their application for scrutiny, a prayer to file a report on the same.

Ndubi having complained that unlike in the Raila Odinga petition, the scrutiny process was not presided over by court officer who would later submit a report to the court.

When they granted a limited scrutiny order, the bench in unison, also faulted the lack of specificity in the phrasing of the prayers.

“Some of the prayers have been declined due to the sheer impracticability of their implementation given the short time left for the determination of the petitions at hand. Others have been declined because they were not pleaded with sufficient particularity in the Petition. Yet others, were declined on grounds that they are couched in such general terms as to be no more than fishing expeditions,” the order reads.

And while the court did grant Mue and Khalifa’s prayer for a certified copy of the voters register, they had to settle for a soft copy version as they were unwilling to pay the Sh80 million price tag attached to making the copy; the IEBC informing the court that they had made the cost implication of the prayer clear in its responses.

Other issues that came up for determination in the hearing of the petition include whether the IEBC broke the law in failing in holding fresh nominations ahead of the October 26 exercise and whether they should have proceeded to declare President Uhuru Kenyatta elected, four counties having failed to participate in the poll on account of the violence that rocked the Nyanza counties at the time.

It is also worth noting that amendments were made to the election laws post the annulment of the August 8 presidential election by the ruling party; raising the bar on the conditions that need to be met before the Supreme Court can find an election invalid, triggering a fresh exercise.

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