The Supreme Court failed to raise the requisite quorum to hear a case that sought to block today's presidential election in a surprise move that added to the drama leading up to the repeat vote.
Chief Justice David Maraga informed lawyers that the court would not sit as it lacked quorum, meaning the electoral commission can continue with the election.
The law requires that the court should have at least five judges to conduct its business.
Justice Maraga said only he and Justice Isaac Lenaola were available and thus the court would not sit.
“Regrettably and with due apology to the parties this court cannot proceed today,” he said.
Deputy Chief Justice Philomena Mwilu was absent from court as she was shaken by the shooting of her security guard, he added.
Justice Ibrahim was out of the country whereas Justice Njoki Ndung’u was caught up in a flight delay to the city.
The CJ said that Justices Jackton Ojwang and Smokin Wanjala would not sit in the case but did not offer an explanation of their whereabouts.
“Following the events that happened last night, the DCJ is not in a position to come to court,” he said.
A source in the Judiciary said the judges were informed late yesterday that the case had been filed and they were required to sit at 10am yesterday to hear it.
The source said the judges requested that the case be heard at 2pm but the registrar of the Supreme Court, Esther Nyaiyaki, later communicated that it would be heard in the morning.
“Judges were informed that the case had been filed late in the day, which was an inconvenience. The hearing ought to have been placed at 2pm as they had requested in order to allow them to arrive but it did not happen,” the source added.
According to the source some judges insisted they needed some time to study the petitioners' documents before proceeding to hear the matter.
“When the 2pm request failed, each of the judges, except for the DCJ, made a phone call to CJ Maraga informing him the notice given was too short and thus untenable," said the source.
The lawyers for National Super Alliance leader Raila Odinga and the three petitioners - Khelef Khalifa, Samwel Mohochi, and Nahashon Kamau - claimed that the absence was sabotage.
James Orengo, John Khaminwa, and Harun Ndubi claimed the judges stayed out of their work station at will to ensure the case would not proceed.
“Lack of quorum in the Supreme Court is not by coincidence. The gazettement of October 25 as a public holiday was part of a plot to ensure that the case will not be heard but when a decision was made to hear it there was an attempt on DCJ’s life,” Orengo said.
He observed that the responses to the case by IEBC were signed by Chairman Wafula Chebukati’s deputy, Consolata Maina.
IEBC said it had taken all the necessary steps to ensure that today’s election is free and fair.
According to the commission, many cases challenging its decisions had become a road block to giving Kenyans another chance to vote.
“I can confirm that all the necessary infrastructure for the fresh election have been put in place,” said Mrs Maina.
President Uhuru Kenyatta and Attorney General Githu Muigai said the case was just meant to push Raila’s agenda.
President Kenyatta argued: “The election has not taken place and thus the allegation that the election will be conducted in an impartial manner is speculative. The petition is not ripe and thus should be struck out.”
The AG urged the court to take judicial notice of the immense operational and resource investments made to ensure free, fair and credible elections.