Pending cases likely to affect repeat poll

Nasa leader Raila Odinga addresses the press outside Anniversary Towers after a meeting with IEBC chairman Wafula Chebukati on October 19, 2017, After withdrawing from the presidential race, four cases were filed in court challenging his move. All these cases are likely to affect outcome of repeat poll. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP

What you need to know:

  • Three cases have to do with the transmission of results, a contentious matter that led to the nullification of the August 8 presidential results.

  • Former MP John Harun Mwau moved to court challenging IEBC’s move to go ahead with the repeat poll, without allowing candidates to hold nominations.

  • Similarly, a lobby group has moved to the High Court seeking an interpretation of the term “fresh election” and what the withdrawal of Raila Odinga from the repeat presidential election means.

  • Still before the High Court, Pokot South MP David Pkosing has sought to compel Nasa leaders to participate in the repeat poll.

About 10 cases are pending before the High Court and the Court of Appeal whose judgments might affect the repeat poll on October 26.

Four of the cases were filed soon after Nasa leader Raila Odinga and his co-principal Kalonzo Musyoka wrote to the Independent Electoral and Boundaries Commission (IEBC), withdrawing from the repeat poll until their calls for reforms are met.

Three others have to do with the transmission of results, a contentious matter that led to the nullification of the August 8 presidential results.

Former MP John Harun Mwau moved to court challenging IEBC’s move to go ahead with the repeat poll, without allowing candidates to hold nominations.

NOMINATIONS

Mr Mwau argued that it was wrong for the Commission to publish a gazette notice on September 5, announcing the repeat presidential polls, as it violates the law.

According to the former Kilome MP, the Supreme Court had directed IEBC to hold fresh polls and to him, all candidates intending to vie the country’s top seat, should be nominated as per the Elections Act.

He argued that it was clear that IEBC and Mr Wafula Chebukati are seeking to waive provisions of the Constitution and the law.

He is apprehensive that if the fresh presidential elections are allowed to proceed “the Supreme Court,  will invalidate the same”.

He therefore wants the High Court to determine whether fresh elections can be held without nominations.

INTERPRETATION

Similarly, a lobby group has moved to the High Court seeking an interpretation of the term “fresh election” and what the withdrawal of Raila Odinga from the repeat presidential election means.

Appearing before Justice Chacha Mwita, Uzalendo Institute of Leadership and Democracy, through lawyer Chege Kamau wants the court to interpret what the term “fresh election” as provided in Article 140, means as well as “presidential elections” and “General Election” as provided under section 13 of the Election Act.

Mr Kamau argued that the court should explain the terms especially after withdrawal of Mr Odinga from the State House race.

Still before the High Court, Pokot South MP David Pkosing has sought to compel Nasa leaders to participate in the repeat poll.

CASE

The case was argued in the absence of Nasa representatives after they failed to respond to the case despite being served with court papers.

Mr Pkosing has named Mr Odinga and Mr Musyoka, Nasa co-principals Musalia Mudavadi and Moses Wetangula as respondents in the case.

The MP said he is apprehensive that there is political conspiracy to prevent the IEBC, as presently established, from conducting the fresh presidential elections.

According to the MP, if the fresh presidential election that is slated for October 26, aborts by whatever means, Kenya is likely to plunge into a constitutional crisis.

PETITION

Another case pending before the court is a petition filed by activist Okiya Omtatah, who wants the court to temporarily bar IEBC from going ahead with the poll plans.

According to Mr Omtatah, while withdrawing from the race Mr Odinga declared that he will not participate in the fresh elections because the IEBC has failed to undertake basic reforms to ensure credible elections.

He said that the failure to hold the election will inevitably require the formation of a caretaker government, to be in charge of the country for the 60 days period provided under Article 138(9) of the Constitution, within which the IEBC is required to hold fresh elections.

He said that at the same time, the law as regards the consequences of  Nasa withdrawal is not clear and the court should clarify the matter.

CLARIFY

“In the circumstances, it is incumbent upon this Honourable Court to make declaratory orders which will clear the air and put an end to any doubt as to what the law is going forward,” reads part of his affidavit.

And the latest case was filed on Thursday by Kiambu Town MP Jude Njomo, who is seeking a clarification of the Supreme Court decision of 2013 on Article 138(8) and in its interpretation, when the Judges inserted the term “abandons” which is not included in Article 138(8)(b) of the Constitution.

The MP wants the court to clarify what happens when a candidate withdraws his or her candidature after fresh elections have been called.

The cases have been so many to the extent that Attorney General Githu Muigai had asked Court of Appeal judges to order advocates condemned to pay costs to other lawyers, as a punishment for filing a frivolous case.

FRIVOLOUS LITIGATIONS

According to Prof Muigai, since the announcement of August 8 General Election results, some 35 cases have been filed with plans of stopping the election.

He said punishing a party to pay costs would stop the habit of filing the cases.

Prof Muigai said his office was ‘struggling” with new cases in various court filed by “the same group of litigants”.

“I would like the court to send a clear message that election is an important national question and should not be subject to frivolous and self-promoting litigation,” he said.

INSTRUCTIONS

But one of the lawyers Mr Nelson Havi objected the AG’s push for lawyers to pay costs saying, “It is an oppressive request and not founded in law.”

The advocate said they take instructions on behalf of a client.

At the Court of Appeal, a Narok voter Abraham Mutai wanted the court to stop the October 26 presidential poll but he withdrew the case the last minute.