The case filed by three civil society activists in Supreme Court seeking to have tomorrow’s rerun presidential election failed to take off on Wednesday even as it was treated as a matter of urgency.
Postponing the case, Chief Justice David Maraga cited lack of quorum explaining that the Deputy Chief Justice Philomena Mwilu was not in a position to sit in court after Tuesday’s shooting of her driver.
Justice Mohammed Ibrahim, he explained was ill while Justices Jackton Ojwang and Smokin Wanjala were unable to come to the court and Justice Njoki Ndung’u was out of Nairobi and could not get a flight.
The only other available judge was Justice Isaac Lenaola but the two could not form a quorum.\
The case filed by Khelef Khalifa, Samuel Mohochi and Gacheke Gachihi had been certified as urgent with the Chief Justice directing the trio to file their submissions by 6pm on Tuesday.
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After the adjournment, lawyer James Orengo for NASA was overheard telling a colleague “the State operates in mysterious ways.”
In an interview with KTN Orengo said: “Our take is that the constitutional order is being overturned.”
He noted that IEBC’s replying affidavit was signed by not its chair, Wafula Chebukati, but his deputy Connie Maina whose elevation to that position was gazetted on Tuesday evening, a day to the election, by Mr Chebukati. Some lawyers have said the position doesn’t exist in law. According to Orengo that position is illegal.
A bill awaiting presidential assent creates the position of a deputy IEBC chair who can act in case the chair is unable to execute duty. Western envoys have urged the president not to assent to it because international best practice dictates that you can not change electoral law in the middle of electioneering.
“It is clear that the IEBC is operating without the authority of the chairman. He is just a passenger. IEBC is disabled,” he added.
Mr Orengo said he was surprised that the Chief Justice could not mobilise a quorum and it was not a coincidence.
According to the lawyer the gazettement of Wednesday as public holiday was meant to stop the court from sitting.
He said the shooting of the Deputy Chief Justice’s driver happened when the Chief Justice said they would continue with case on Wednesday.
“It was an attempt to traumatise her (Justice Mwilu),” said Orengo.
Lawyer Harun Ndubi for the trio also said the declaration of the Wednesday public holiday was calculated to stop the court from sitting, blaming the judges who withdrew their labour.
John Khaminwa, who is also appearing for the plaintiffs, said the two available judges had let them down.
On September 1, the Supreme Court annulled the August 8 presidential election on the grounds that it had not been conducted according to the constitution and the applicable law.
The Chief Justice, Justices Mwilu, Lenaola, and Wanjala upheld the Raila-Odinga petition against President Uhuru’s election. Justices Ojwang and Ndung’u dissented while Justice Mohammed did not participate having had been taken ill midstream the hearing.
President Uhuru Kenyatta took a dim view of the annulment and called the judges crooks even as he said he would respect their decision, promising to “fix” the court in parliament. READ: Jubilee politicians took the cue and criticised the judges in countrywide rallies.