Nominee for Attorney General defends decision that saved October 26 repeat presidential poll

Supreme Court building in Nairobi. [Edward Kiplimo, Standard]

The nominee for Attorney General has defended his decision to constitute a bench to hear a poll petition last year.

Justice Paul Kihara appointed three judges to consider an appeal against a declaration that electoral commission officials were illegally recruited prior to the October 26 elections. 

The Court of Appeal on the eve of the October 26 repeat presidential election lifted an order that would have exposed the conducting of the election by the Independent Electoral and Boundaries Commission (IEBC) to legal challenges.

High Court judge George Odunga had declared that all the 270 returning officers had been illegally appointed, which in effect made it impossible for IEBC to conduct the repeat presidential election within the law. 

But justices Martha Koome, Erastus Githinji, and Fatuma Sichale lifted the orders.

Outside Nairobi 

Yesterday, Justice Kihara told the National Assembly Appointments Committee, which was vetting him, that as the president of the Court of Appeal, he had the powers to set up a bench to hear the case.

The controversy stemmed from the fact that the three judges were drawn from stations outside Nairobi, but Kihara explained that the judges were all in Nairobi at the time and that the court was one despite being spread across the country.

He said two of the judges were on duty on that day while the third one was called in to help as another judge was not available.

 “I acted in accordance with the law. In the five years that I was the president I have empanelled thousands of benches and I have never been accused of bribery or influence... the Court of Appeal is one, just like the High Court, despite having stations across the country,” he said.

The judge was said to be worth Sh160 million.