Nasa decides to take the legal route on poll petition

Thursday August 17 2017

The Supreme Court will now be the centre of focus after Nasa decided to challenge the declaration of President Uhuru Kenyatta as the winner of the August 8 election. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP

The Supreme Court will now be the centre of focus after Nasa decided to challenge the declaration of President Uhuru Kenyatta as the winner of the August 8 election. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP 

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Nasa has until Friday midnight to file its petition challenging President Uhuru Kenyatta’s re-election.

All indications were that they were ready to move to the Supreme Court on Thursday but, by evening, none of the opposition coalition’s lawyers had appeared at the court registry.

One of the lawyers representing the National Super Alliance and politicians allied to it said the coalition was not leaving anything to chance.


They said Nasa was buying time to put together a water-tight case and would file the petition Friday arising from the General Election.

On Wednesday, Nasa leaders announced their intention to challenge in court the outcome of the presidential election held last Tuesday despite having initially said they would not.

The petition must be filed within seven days after the declaration of the presidential election results.

Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati declared President Kenyatta the winner of the 2017 General Election last Friday, August 11.

Although judges are on recess and court registries close at noon, Supreme Court Registrar Esther Nyaiyaki put out a public notice on August 14 stating that the registry will be open on Friday from 7am to midnight.

“In order to adhere to the statutory deadlines governing the hearing and determination of the presidential election petition, the Supreme Court Registry will be open,” Ms Nyaiyaki in the notice said.

Once Nasa moves to court, they must serve the petition to the respondents — in this case President Kenyatta and his deputy William Ruto — as well as IEBC and its chairman, the returning officer, in two days.

The service may be made directly to the respondents or through an advertisement in a newspaper with national circulation.

In addition to lodging the case documents manually, Nasa will have to also file the petition electronically within six hours.

Upon receiving the petition, Jubilee Party, which sponsored President Kenyatta’s candidature, and IEBC will have four days to file their responses, if any.

On the fifth day — either Wednesday or Thursday next week — the judges will hear preliminary applications if Jubilee or IEBC will have filed any.

On the eighth day, the parties will appear before Ms Nyaiyaki for a pre-trail conference, where they will confirm whether their papers are in order and lawyers and the court have the documents ready for the hearing.

The seven judges of the Supreme Court will then sit for the hearing soon afterwards.

They have six days to hear the dispute and give their decision.

Chief Justice David Maraga, the president of the Supreme Court, has said that the Judiciary is ready to hear the case and, if necessary: “I will allow our judicial officers to work outside the official hours — into the night and through weekends — to ensure that we keep to the constitutional timelines without compromising on the quality of rulings.”

When he was being interviewed for the post last year, Mr Maraga, a strict Seventh-Day Adventist adherent, was categorical that he would not work on a Saturday but will agree with other judges who do.

Nasa is yet to release the list of lawyers to represent the coalition in the petition.

However, the Nation has learnt that those likely to be in the team include senior counsel James Orengo, who is also the Siaya senator, senior counsel George Oraro, Mr Paul Mwangi, Professor Ben Sihanya, Mr Mutakha Kangu, Mr Jackson Awele and Makueni Senator Mutula Kilonzo Junior.

Jubilee’s legal team is likely to include Mr Fred Ngatia, senior counsel Ahmednasir Abdullahi, Mr Tom Macharia and Ms Melissa Ngania while IEBC and Mr Chebukati might be represented by, among others, senior counsel Paul Muite, Prof PLO Lumumba, Mr Kamau Karori, Mr Paul Nyamodi and Mr Edwin Mukele.