Presidential petitions are decided quickly but other cases drag on

Wednesday August 30 2017

By BANKELELE
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From my notes while reading Charles Hornsby’s Kenya: A History since Independence, “15 petitions followed the 1969 elections and they were heard by Euro and Asian judges (Njonjo's decision) - 3 were successful.”

“39 petitions followed the 1974 elections, and 9 MPs lost their seats, with 4 barred from contesting for 5 years.”

“The 1979 elections had no observers…31 petitions were heard by non-African judges and 9 MP's (including 3 ministers) lost their seats”

This year is expected to be no different and the Deputy Chief Justice was quoted as saying the courts were expecting as many as 300 petitions following the August 8 election.

The Supreme Court rules for presidential petitions were tried and tested in 2013, and while some lawyers believe the constitutionally set timeline of two weeks is not realistic to tackle a complex case like a presidential election, the courts will do it again.

The Judiciary even published a 200-page booklet titled Bench Book On Electoral Disputes Resolution that deals with every aspect of election disputes to guide judges and court officials in deciding the validity of elections.

The book has checklists, timetables and clauses on things election offenses, the technology used in Kenya elections, nullification of elections, standard of proof, fling of petitions, examinations of witnesses, recusal of judges, jurisdiction and constitutional matters.

ATTENTION AND EFFICIENCY

It cites judicial precedents, and even recent past decisions, such as Ferdinand Waititu vs. Evans Kidero, Wavinya Ndeti’s Wiper Party eligibility case of 2017, and even an Amama Mbabazi vs. Yoweri Museveni election case from the Uganda Supreme Court in 2016!

Besides that, a raft of election laws were passed this year with new court rules gazetted thereafter. A separate newspaper notice by the Judiciary last week had a full page with frequently asked questions regarding petitions. It also declared that the Judiciary has set out to resolve all election cases within six months.

While elections are important to politicians, it would be nice if the Judiciary could also extend the same attention and efficiency to other cases that affect ordinary Kenyans.

Virtually every Kenyan is affected by some unresolved court case, whether it's a commercial dispute, employment, land, traffic, inheritance, bank loans etc.

Newspapers often run stories about land cases that have taken 40 years in the courts, inheritance cases of 20 years, and bank loan and corruption prosecutions that drag on for more than five years.

HARDER TO RESOLVE

The slow pace of the Judiciary to settle disputes with finality has been cited as one reason why several large investment companies and funds are registered in Mauritius.

They then sign contracts which direct that legal disputes be resolved elsewhere, which could be why major shareholder disputes like Tatu City and Zuku are being heard in places other than Nairobi.

Whatever the merits of these cases, they do not need to take decades to resolve and as the years go by, they get harder to resolve; Judges are rotated, witnesses come and go, and some parties may even pass away. Also, records and evidence could get lost or get eaten by termites.

Disputes between borrowers and banks should not drag on for so many years that they incur legal, penalty and interest charges that eventually exceed many times the initial loan amount.

The in-duplum rule that was proposed by the Finance Minister David Mwiraria and the interest capping bills by MP’s Joe Donde and Jude Njomo would not be needed as much.

Twitter: @bankelele