State House battle heads to apex court

The battle over who won the August 9 presidential election appeared headed to the Supreme Court yesterday after Azimio-One Kenya candidate Raila Odinga rejected the results announced by IEBC.

Raila also dismissed the decision by the chairman of the electoral commission, Wafula Chebukati, to declare UDA candidate William Ruto as the winner.

According to Chebukati, the returning officer of the presidential election, Ruto garnered 7.17 million of the 14.3 million votes cast (representing 50.49 per cent) while Raila got 6.9 million (representing 48.58 per cent).

Should Raila and Azimio-One Kenya seek legal redress, the matter will be heard by Chief Justice Martha Koome and the six other judges of the Supreme Court in about a week from today.

The Judiciary has already embarked on preparations for hearing a possible petition to invalidate the presidential election results declared on Monday.

If filed, the hearing of the petition or petitions will take place at Milimani Law Courts’ Ceremonial Hall, unlike the previous ones, which were heard at the Supreme Court Building.

Legal redress

Yesterday, preparations were in top gear at the hall as sources confirmed that the judges will not use the old building because it lacks adequate space.

The Judiciary has also set up a Supreme Court sub-registry at Forodha House, adjacent to Milimani Law Courts to receive any presidential petition challenging the declaration of William Ruto and Rigathi Gachagua as President-elect and Deputy President-elect respectively.

All advocates, litigants and citizens seeking legal redress regarding the presidential election have been directed to submit their papers 14 hours before the deadline, which falls on Tuesday, August 23.

“Under Rule 7(3) of the Supreme Court (Presidential Election Petition) Rules, 2017, where the petition is filed on the last available day of filing, it shall be filed before 1400 hours of that day,” says a notice by Supreme Court registrar Letizia Wachira.

Petitioners will have 24 hours to serve the parties in the case upon filling the suit.

“Within six hours of petitioning, the petitioner ought to serve the respondents with the petition through electronic means, nationwide circulation of newspapers or serving it directly to the respondents,” the Judiciary’s statement reads in part.

The seven-day timeline is provided under the Constitution and Supreme Court Presidential Election Petition Rules published in 2017.

According to Article 140(2) of the Constitution, the Supreme Court has 14 days to determine a petition from the date of filing and its decision will be final.

Third party

The latest the Supreme court can render its decision is September 5, meaning that the latest the swearing-in of the president-elect must happen by September 12, the seventh day from the date of judgment.

According to Article 140(1), any person may file a petition in the Supreme Court to challenge the election of the president-elect within seven days after the date of the declaration of the results of the presidential election.

The rules also provide that the respondents ought to file and furnish the petitioner with their responses within four days. The petitioner should file the rejoinder within one day from when the respondents put their responses. 

A third party wishing to join the petition as a friend of the court is also supposed to file in court and furnish the parties with a formal application for joining within a day from the date of filing of responses to the petition.

Such third parties must demonstrate their stakes in the petition. 

The rules further provide that a pre-trial conference (preparation for hearing the petition) takes eight days from the date of filing.

Hearing of the petition commences immediately after the pre-trial conference and determination of the petition is within 14 days from the date of filing the petition.

“The Supreme Court (Presidential Election Petition) Rules, 2017 have been promulgated to ensure smooth and expeditious disposal of any dispute relating to the election of the President. This is a non-negotiable timeframe,” Chief Justice Martha Koome recently said in a notice. 

Fresh election

 Article 140(3) of the Constitution provides that if the Supreme Court determines the election of the President-elect to be invalid – as happened in 2017 where President Uhuru Kenyatta’s reelection was nullified  – a fresh election will be held within 60 days after the determination.

In addition, Article 139 states that if a President-elect dies after being declared elected President, but before assuming office, the Deputy President-elect will be sworn in as acting President on the date on which the President-elect would otherwise have been sworn-in. 

A fresh presidential election will thereafter be held within 60 days after the death of the President-elect.

If the Deputy President-elect dies before assuming office, the office of the Deputy President shall be declared vacant on the assumption of office by the person declared elected as the President.

In the event both the persons declared elected as the President and the Deputy President die before assuming office, the Speaker of the National Assembly will act as President from the date on which the President-elect would have been sworn-in.