The drama surrounding a petition that was intended to stop the October 26, 2017 repeat presidential election continued Tuesday when Supreme Court judge Smokin Wanjala was stopped from reading the ruling by lawyers for the petitioners.
After almost two years of little to no movement on the matter, the Supreme Court on Wednesday last week notified the parties that a ruling on Petition 17 of 2017 would be delivered on Tuesday (April 30).
However, the petitioners' lawyer, Mr Harun Ndubi, thwarted the attempt to read the ruling on grounds that the court had not heard the petitioners.
Without the oral hearings, the court was only basing its ruling on the written petition. “I was surprised that they were planning to deliver a ruling having not heard us, the petitioners and even the respondents.
"Therefore, I asked that they should not release the ruling and the matter be referred back to the Chief Justice so that he can give us a panel of judges to hear us, because the right to a fair hearing is a constitutional right. It is not a privilege to be doled out by the court,” said Mr Ndubi.
The petition was filed by civil society activists Khelef Khalifa, Samwel Mohochi and Gacheke Gachihi, and sought the Supreme Court’s determination of the consequences of a candidate withdrawing from a repeat election such as the one the court had ordered after it nullified the presidential election on September 1, 2017.
The petitioners had contended that the repeat election of October 26, 2017 should be shelved and a new election called since ODM’s Raila Odinga had withdrawn from the race.
The petition was filed on October 24, 2017, and certified as urgent by Chief Justice Maraga. A hearing had been scheduled the next day on October 25 but did not come to pass.
First, the government attempted to scuttle the hearing by gazetting a public holiday on October 25 and then on the material day, only two of the seven Supreme Court judges turned up, way below the quorum of at least five judges.
Those who turned up were Chief Justice Maraga and Justice Isaac Lenaola. Except Justice Mohamed Ibrahim whose whereabouts were known as he had been taken ill weeks earlier, no clear explanation has ever been given for the absenteeism by Justices Jackton Ojwang’ (now suspended), Wanjala and Njoki Ndung’u.
The explanation on Deputy Chief Justice Philomena Mwilu was that she had been traumatised by the previous night’s events where her aide was shot in what was seen as an attempt on her life.
Other than the petitioners’ lawyer, other parties including the IEBC and its chairman Wafula Chebukati were not present in court during Tuesday’s aborted ruling.
Other reasons why the petitioners objected to the ruling being read included a demand for an explanation whether suspended Justice Ojwang’ had any input in the ruling and what that would mean.
“On October 25, 2017, when that matter was scheduled for hearing, there was a cause list with all the Supreme Court judges scheduled to hear the matter. That list included Ojwang’.
"Since we have not been told if that bench has been reconstituted, we expect that ruling would have had the input of Ojwang’, which again would have meant that the ruling couldn’t be delivered since he has been suspended,” said Mr Ndubi.
The petitioners also raised questions as to how the ruling could be delivered by one of the judges (Justice Wanjala) who absconded from court on October 25, 2017.
Another bone of contention was the alleged behaviour of Deputy Registrar of the Supreme Court Daniel ole Keiwua.
He is alleged to have asked the petitioners to withdraw the matter failure to which costs would follow.
Having failed to convince the petitioners to read the ruling, Justice Wanjala said he would refer the file back to Chief Justice Maraga for directions.