Second presidential petition at Supreme Court

Supreme Court judges:Justice Njoki Ndung'u, Justice Smokin Wanjala, Deputy Chief Justice Philomena Mwilu,Chief Justice David Maraga, Justice Jackton Ojwang and Justice Isaac Lenaola. [Edward Kiplimo,Standard]
Court holding a status conference before the start of petition-proper involving three cases.

  • The conference will lay down the rules of engagement agreeable to all parties.
  • The petitioners are: Njonjo Mue and Khelef Khalifa and businessman Harun Mwau
Mue and Khalifa’s case is that IEBC failed to conduct a fresh election in accordance with the dictates of the constitution.

Mwau has submitted that the poll should be voided because the Independent Electoral and Boundaries Commission failed to subject the candidates to fresh nominations after the August 8 poll was invalidated.

In his replying affidavit to Mwau’s grounds, the President argues that fresh nominations were unnecessary because the Supreme Court only voided the declaration of the results of the August 8 presidential election but not the party primaries that preceded it.

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The President is represented by lawyers Fred Ngatia, Ahmednasir Abdullahi, Ken Ogetto, Katwa Kigen, Tom Macharia and Kimani Kiragu among others.

Waweru Gatonye, Kamau Karori, Eric Gumbo, Lucy Kambuni and Wambua Kilonzo appear for IEBC with its chairman Wafula Chebukati being represented by Kimani Muhoro, Mohat Somane and George Murugu.

Paul Mwangi represents the National Super Alliance which declined to participate in the contested election.

Julie Soweto Aullo, who represented Africog against Uhuru Kenyatta’s election in 2013, is appearing for Njonjo Mue and Khelef Khalefa as is Harun Ndubi.

Harun Mwau has engaged Benjamin Musyoki while Kioko Kilukumi is turning up for the Institute for Democratic Governance.

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In September the Supreme Court annulled the August 8 presidential election on the grounds that it was not conducted in accordance with the Constitution and the applicable law; that it was marred by irregularities and illegalities.

That was the majority ruling by Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Justice Isaac Lenaola and Justice Smokin Wanjala.

Justice Mohamed Ibrahim was taken ill midstream the hearing and therefore did not render his verdict.

Dissenting, Justices Njoki Ndung’u and Jackton Ojwang found there was no reason to nullify the 2017 presidential election.

The two judges in their verdict, read separately, found that National Super Alliance (NASA) leader Raila Odinga failed to prove that the results announced at the constituencies had issues.

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They questioned how the transmission system, which Independent Electoral and Boundaries Commission (IEBC) claimed was just a bus, could be the only basis of nullifying the whole election.

Justice Ojwang said that Kenya’s election is manual and mildly supported by the electronic process. “It was not proved that the voters’ will during the conduct of elections, was so affected by any irregularities cited so as to place this court or the country in doubt as to what the result of the election was,” Justice Njoki ruled.
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NASA boycotted the repeat election on the grounds that the IEBC had failed to meet its irreducible minimums for a free and fair election but in a lengthy advert, the IEBC maintained it had met all of them.

Subsequently, the NASA presidential candidate Raila Odinga and his runningmate Kalonzo Musyoka wrote to the IEBC withdrawing from the race.

The IEBC, however, included their names in the ballots arguing that the withdrawal was procedural because they had filled in Form 24A.

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Responding, NASA held that the form only applied to withdrawals after fresh nominations.

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