, NAIROBI, Kenya, Mar 18 – If the Supreme Court as constituted ties in its verdict in the case by Raila Odinga against the election of Uhuru Kenyatta as president, then the status quo will remain rendering the case a flop.
The chairman of the Law Society of Kenya (LSK) Eric Mutua says if the decision of the six-judge court is split equally, then the petition will be lost, according to the law.
Mutua told Capital FM News that his legal interpretation is that, in the event of a 3-3 verdict, the Supreme Court will have been unable to make a decision thus retaining the status quo, which is upholding Kenyatta’s election.
Section 25 (2) of the Supreme Court Act states that if the judges are equally divided in opinion, the decision appealed from or under review shall be considered as having been affirmed.
However, Mutua says that Chief Justice Willy Mutunga has the powers to constitute an odd-numbered bench – meaning that one judge is dropped – but such a decision could be contentious.
“The ideal situation would have been to have an uneven number of judges sit, but there will be questions asked if the Chief Justice uses powers granted to him in law to compose a bench,” Mutua added.
The LSK chairman insists that the petition is the biggest assignment ahead of the Supreme Court and no judge including the Chief Justice should have reason to sit out unless parties have justified reasons to reject a judge.
“For a matter of this magnitude, it is unwise for the Chief Justice to leave the bench. There is nothing greater than this matter in the history of the new Judiciary,” he asserted.
Last week, Chief Justice Willy Mutunga insisted that the six judges of the court will hear and determine applications brought before it.
Section 5 of the Supreme Court Act gives the CJ precedence over the other judges of the Supreme Court.
The other judges of the Supreme Court take precedence among themselves, according to the dates on which they respectively took office as judges of the Supreme Court or when they were admitted to the bar.
Currently, the court is composed of justices Willy Mutunga, Philip Tunoi, Jackton Ojwang, Smokin Wanjala, Njoki Ndung’u and Mohammed Ibrahim.
Justice Kalpana Rawal who was nominated to replace Nancy Baraza as deputy CJ is ineligible, as her appointment is yet to be approved by Parliament.
CORD filed a petition last Saturday seeking to challenge the announcement of Uhuru Kenyatta as President-elect and William Ruto as Deputy President-elect.
Prime Minister Raila Odinga who was CORD’s presidential candidate in the just-ended elections wants the process leading to their win declared null and void and a fresh presidential election held.
He argues that there was no free and fair presidential election conducted and that it will be unlawful to have Kenyatta and Ruto form the government.