Judges want time to hear petitions extended as from 2017 election

Supreme Court judge Smokin Wanjala who urged judges to employ creativity in interpreting the Constitution. PHOTO: FILE

MOMBASA: The Judiciary has criticised Parliament for failure to amend the Constitution to extend the time for determining a presidential petition.

The judges wanted the MPs to increase the days of hearing a presidential petition to 30 from 14 so as to allow the Supreme Court more time to hear the case.

The Judiciary Committee on Elections on Monday told judges in Mombasa that Parliament had failed to appreciate or understand that the 2017 election will be highly contested and could end up in court.

They said the extension from 14 to 30 days will give the Supreme Court sufficient time to deliver a verdict acceptable to the petitioner(s) and respondents.

The judges said they were aware the petitioner to the Supreme Court in the 2013 presidential poll complained the bulk of his petition was struck out for lack of adequate time.

The committee said such complaints, if left unaddressed, could lead to loss of confidence in the Judiciary. Some 187 disputes from the 2013 polls ended in court.

“Presidential election petitions are very important because they do not only set precedence but are also studied and cited in universities and other schools,” Appellate judge David Maraga said.

Judges from the High Court, Court of Appeal and Supreme Court are at White Sands Hotel in Mombasa for the annual Judges Colloquium.


On Monday, they deliberated on the Judiciary’s preparedness for the next election and also the constitutional interpretations by the courts.

Supreme Court judge Smokin Wanjala, who sat in the 2013 presidential petition by CORD leader Raila Odinga called on the judges to employ their creativity in interpreting the Constitution, saying many provisions in the supreme law are ambiguous.

“Most of the provisions in the Constitution are very general and it could take the country up to 20 years to have a clear guide on how to interpret. Judges are grappling with the interpretation of the Constitution,” said Dr Wanjala.

On elections, Justice Maraga warned that by failing to adopt the proposal, Parliament had thrown the Judiciary into a dilemma and could lead to decline in public confidence in courts.

Citing the 2013 presidential petition where CORD was time-barred from submitting some of its evidence, Maraga said such a scenario could plunge the country into uncertainty in future.

He said the committee had written to Parliament three times on the need to amend some electoral laws and the Constitution but Parliament failed to act.

He, however, said in the event there will be a presidential petition, the Independent Electoral and Boundaries Commission will now be required to avail all documents relied to declare the presidential results to the petition within 48 hours.