Supreme Court refers poll date case to lower court

November 15, 2011 3:43 pm


Supreme Court judges Njoki Ndung'u and Jackton Ojwang/MUTHONI NJUKI
NAIROBI, Kenya, Nov 15 – The Supreme Court has declined to give directions on the date of the next General Election and referred the matter to the High Court.

The full bench of the court presided over by Chief Justice Willy Mutunga directed that the cases proceed before the Constitutional Human Rights Division of the High Court.

In reading the ruling, the CJ said the Supreme Court as the ultimate interpreter of the constitution would protect and reinforce the conferment of first instance jurisdiction upon the High Court.

“In this case, the matter over which an advisory opinion is being sought is already in the High Court.”

The now defunct Interim Independent Electoral Commission had gone to the Supreme Court seeking an advisory opinion interpreting articles 101, 136(2) (a) 177(1) (a) and 180(1) (all dealing with the general elections of President, Members of the National Assembly, the Senate, Governors and members of the County Assemblies) and a further opinion as to when the next general election should be held.

Kilome MP Harun Mwau and lawyer Mugambi Imanyara had filed petitions in the High Court seeking a determination of the date of the next polls, but were forced to wait for the outcome of the same application filed by the Interim Independent Electoral Commission before the Supreme Court.

The office of the Attorney General through Deputy Solicitor General Muthoni Kimani and lawyer Ian Maina (acting for Mwau) both presented objections on the ability of the Supreme Court to determine the matter.

Both argued that the function of interpreting the constitution was the preserve of the High Court and the Supreme Court would prejudice the proceedings already in the High Court if it ruled on the matter.

Kimani argued that the Supreme Court did not have the jurisdiction to hear and give an opinion on the matter as the as the opinion was not going to settle a dispute or cause any sort of action to be taken on the petitions already in the High Court.

In the ruling however, Mutunga said that the court had the jurisdiction on the matter but declined to give the opinion and the withheld the reasons for the decision.

“We decline to exercise our discretion to give such an opinion with regard to the date of the next general and reserve our reasons which will be given in a ruling upon notice to the parties,” said Mutunga.

He further directed that the hearings and determination of the two petitions in the High Court be fast tracked and listed for mentions and directions on November 18.

The petitions, Mutunga directed, should be heard on priority and on a day to day basis as the judiciary moves to play its part in clearing the way for preparations for the polls.


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