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Presidential election petition: Here are all possible outcomes

From left: Azimio-One Kenya Coalition leaders James Orengo, Martha Karua, Makau Mutua, Raila Odinga, Jeremiah Kioni, and Kalonzo Musyoka at the Supreme Court. [Samson Wire, Standard]

Azimio la Umoja-One Kenya presidential candidate Raila Odinga formally lodged a petition challenging the declaration of William Ruto as president-elect in the August 9, 2022 polls.

On Monday, August 22, Odinga filed petitions at the Supreme Court, seeking to have Ruto’s win declared null and void.

The Azimio team argues the presidential election was not conducted in accordance with the Constitution.

Supreme Court on Monday received nine petitions challenging Ruto’s win. 

According to the Judiciary, August 22 was the deadline for aggrieved parties to file their complaints.

The petitioners are expected to serve respondents by the close of business on Tuesday, August 23.

The respondents, thereafter, have until Saturday, August 27 (four days) to file responses, after which rejoinders will be filed and served by Sunday, August 28. This will then allow interlocutory applications to be filed and served by Monday, August 29, and responses to the interlocutory applications filed a day later, August 30. It is also the same day that the pre-trial conference begins. Third parties (friends of the court) are expected to file and serve applications by August 31.

September 5 is the Supreme Court’s deadline to render a verdict. Note that the hearing and determination of the petition is 14 days from the day of filing (the petition was filed on August 22).

Article 140 (2) of the Constitution states: “Within fourteen (14) days after the filing of a petition, the Supreme Court shall hear and determine the petition and its decision shall be final.”

There are four case scenarios at play from the presidential petition.

Scenario One

If the Supreme Court dismisses the presidential petitions and upholds Ruto’s win, he would be sworn in on the first Tuesday, seven days after the court’s judgement. This means he’d take the oath of office on September 13. Upon assumption of office, Ruto would become Kenya’s fifth President since 1963.

Scenario Two

Should the Supreme Court nullify the elections, it will order that fresh elections be held within 60 days from the day it delivers the ruling. This would mean that Kenyans will return to the ballot on November 4, 2022, and the results of the presidential poll declared on November 11 (seven days after voting). Based on recommended timelines, the president-elect would then be sworn in on November 29, which is the first Tuesday after 14 days following the declaration of the presidential result. However, for this to happen, there shouldn’t be a presidential petition lodged at the Supreme Court.

Scenario Three

In the third possible scenario, a candidate who is dissatisfied with the repeat election results can file a petition at the Supreme Court. They’ll have to do this by November 18 – seven days after the presidential results are announced. Supreme Court would then deliver a judgement by December 2 (fourteen days from the day of filing), and a swearing-in of the president-elect could take place on December 13 – the first Tuesday, seven days after the court’s ruling.

Note that the dates could vary should the Supreme Court deliver the decision before the expiry of the prescribed dates, or should the IEBC conduct fresh polls before the 60 days, or announce a winner before the prescribed seven days.

Scenario Four

The fourth possible scenario is the Supreme Court might, in the Odinga petition, order a new recount of presidential votes in the ballot boxes. Based on the results, the court may order the commission to issue a certificate to the person who would have attained the constitutional threshold to be declared president-elect. The Elections Act of 2011 says such an order can be made by the court only if “the winner is apparent, or if the winner is found not to have committed an electoral offence”.

Until the president-elect is sworn in, President Uhuru Kenyatta remains in office under temporary incumbency terms. During this period, he has limited powers and cannot nominate or appoint judges of the superior courts, or nominate or appoint any public or State officers.

This is the third time, post-promulgation of the 2010 Constitution, that presidential election results are being contested in Kenya.

Raila Odinga disputed the results in 2013, 2017 (against Uhuru Kenyatta), and now 2022 against William Ruto, who has served as Kenyatta’s deputy.

In 2013, Kenyatta’s win was upheld. In 2017, his victory was nullified before his re-election in subsequent repeat polls.