Lawyers criticise court decision

Lawyers have criticised a Supreme Court decision to reject an affidavit with evidence of alleged electoral malpractices in the petition challenging President-elect Uhuru Kenyatta’s victory.

Law Society of Kenya (LSK) chairman Eric Mutua said on Tuesday the decision by the highest court in the land to reject the affidavit on the grounds that it was time-barred will undermine reforms in the Judiciary.

Mr Mutua said the Supreme Court should have considered the affidavit on its own merits instead of rejecting it on technicalities.

“The Chief Justice and President of the Supreme Court, Justice Willy Mutunga has time and again reminded lawyers that the era of reliance on procedural technicalities is gone,” Mr Mutua said.

During the pre-trial conference, which preceded the hearing of the landmark petition filed by Cord presidential candidate Raila Odinga, the six-judge bench rejected an affidavit filed by the PM, saying it was time-barred.

The judges further said that the affidavit which contained evidence of alleged electoral fraud in 122 constituencies had been filed without the court’s leave.

Mr Mutua argued that the rules of procedure in the reformed Judiciary placed emphasis on merits of applications, not procedural technicalities.

Mr Odinga’s petition was dismissed by the Supreme Court in a judgment delivered on Saturday.

In the summary of the judgment, the judges declared that the March 4 election was conducted in a free and fair manner and that Mr Kenyatta and his running mate, Mr William Ruto, had been validly elected president and deputy president, respectively.

But in his statement, Mr Mutua warned that the court’s decision to reject the affidavit by Mr Odinga could set a dangerous precedent where courts would latch onto technicalities to reject evidence.

“I see some lawyers taking advantage of this decision to return us to the era of litigating by advancing arguments of a technical nature,” he warned.

He challenged the Supreme Court to explain its decision to forestall a situation where the courts could resort to rejecting cases on technicalities.

“In the meantime, and in order to promote the good practise of law, I urge our members to exercise ‘bar restraint’ in citing this decision from the Supreme Court,” he said.