Wiper leader Kalonzo Musyoka has opposed a bid to bar Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati from holding office for failing to open servers despite a Supreme Court order in 2017.
Mr Kalonzo, in his submissions before High Court judge Hedwig Ong’undi, argues that the case filed by activist Khelef Khalifa ought to have been filed before the Supreme Court, which issued the orders.
The former vice president is listed as an interested party in the case alongside Raila Odinga. Kalonzo was Mr Raila’s running mate.
“We submit that this Court does not have jurisdiction to entertain the application herein,” argued Kalonzo.
According to him, the High Court has no powers to hear the case.
At the same time, the former VP argues that in the event the High Court finds that it has powers to hear the case, it should find that Khalifa did not attach a valid order from the Supreme Court.
Kalonzo wants the case dismissed and with costs to him.
Chebukati is in the eye of a storm over the bungled 2017 presidential elections. As the country races towards the 2022 polls, the case seeks to revisit Supreme Court orders requiring IEBC to open the servers.
On August 28, 2017, the Supreme Court ordered IEBC to open servers used in streaming presidential election results and allow two independent IT experts who had been appointed by the court to compile a report on the authenticity of President Uhuru Kenyatta’s victory. The servers were, however, not opened.
The Supreme Court, by a majority, ordered a repeat presidential poll following IEBC’s failure to open the servers.
However, Khelef has opted to revisit the battle, which pitted Uhuru and his deputy William Ruto against the principals of the defunct NASA party.
In the case before the High Court, Khalifa has named Raila and Kalonzo as interested parties. This gives them the option to either support the activist or side with Chebukati.
Khalifa also wants the court to jail the IEBC boss for six months for allegedly disobeying court orders.
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“In direct violation of the orders of the court, Wafula Chebukati, the returning officer of the presidential elections has refused and willfully disobeyed the orders of the honourable court,” he argues.
Chebukati, however, sees Khalifa’s case as a plot to hound him out of office. He argues that there was no order issued against him in person and he was not sued by Raila and Kalonzo in his capacity.
This is the second case filed against Chebukati over the 2017 presidential polls. The first case was filed by a Kenyan Samwel Clinton Elijah.
The case will be heard on February 22.