Kidero, Waititu lawyers agree to wait for full bench to hear suit

The hearing of an appeal filed by Nairobi Governor Evans Kidero at the Supreme Court seeking to quash the nullification of his election has been moved forward again.

Lawyers representing Dr Kidero and those of his opponent, former Embakasi MP Ferdinand Waititu, entered a consent before Deputy Supreme Court Registrar, Lucy Njora, to have the matter heard before a full bench on June 25 and 26.

The case was scheduled for hearing on Friday last week but was adjourned due to the absence of Chief Justice Dr Willy Mutunga.

Although six judges of the court were ready to proceed with the hearing, Dr Kidero’s lawyers objected, saying that they wanted to avoid a further dispute in the event that the judges tied.

Lawyer Tom Ojienda, for Dr Kidero, said that the dispute was a weighty issue that concerned governance of the capital city.

In view of this, he said, it would be unfortunate if there was a stalemate. This, Dr Ojienda said, informed their decision.

In the event that the matter was heard by six judges and they failed to agree on a decision, the status quo of the Court of Appeal, which nullified Dr Kidero’s election, would be maintained.

The six judges, Justices Kalpana Rawal, Philip Tunoi, Jackton Ojwang, Mohammed Ibrahim, Smokin Wanjala and Njoki Ndung’u agreed with Dr Kidero’s concerns and adjourned the hearing.

“Although the Constitution allows a minimum of five judges to constitute a bench, we agree that the concern is valid since the bench may end up divided.

“We were persuaded to accommodate the views for the sake of a fair hearing,” ruled the judges.

They directed that the next hearing will be presided over by Dr Mutunga who, according to his deputy, Lady Justice Rawal, was away attending to personal issues.

The judges also extended orders barring the electoral commission from declaring the Nairobi Governor’s seat vacant.

Appellate Judges GBM Kariuki and Patrick Kiage had ruled that Dr Kidero was not validly elected.