, NAIROBI, Kenya, Aug 26 – A case seeking to have the promulgation of the new Constitution stopped was on Thursday dismissed by the Interim Independent Constitutional Dispute Resolution Court (IICDRC).
The five judge bench termed the application an abuse of the court process and added that the prayers sought would have grave consequences on the country.
The petition which was filed by Mary Ariviza and Okotch Mondoh against the Interim Independent Electoral Commission (IIEC), the Attorney General (AG) and George Chege sought a recount of all the votes cast during the referendum.
The majority ruling was made by Justices Scholastica Omondi, Samuel Mukunya and Jamilla Mohamed who also said the petitioners should have made their application earlier.
“This court refuses such invitation that will lead this country into disaster and as earlier stated a court of law does not act in vain. For those reasons, this application is dismissed,” he declared.
The minority ruling was made by Justices Sankale Ole Kantai and Violet Mavisi who also took issue with the Electoral Commission for gazzetting the referendum results knowing that the matter was pending in court.
“The petitioner under the Constitution of Kenya Review Act had a seven day window to serve the petitions. The Constitution of Kenya Review Act therefore creates a responsibility on the part of the IIEC and the AG to establish that there are no challenges before final results can be published in the gazette,” said Justice Kantai.
The court also faulted the AG for allowing a pre-mature announcement of the promulgation date.
“The promulgation was set for August 27th 2010. This date was announced even before the time allowed in law for logic challenges had expired. The 4th respondent should have given sound advice to the Executive not to take such hasty steps that would lead to an abuse of the law and legal process.”
The petition had earlier been applied at the High Court but was struck out and re-applied at the IICDRC under a certificate of urgency.
The IIEC was represented by lawyer Pheroze Nowrojee while the Attorney General was represented by Wanjiku Mbiu. The two had asked the court to strike out the application saying it had no valid grounds. They also argued that the publication of the final vote outcome in the Kenyan gazette had rendered the application null.
On her part, Ms Ariviza who was represented by her lawyer Judy Madahana said her case had valid grounds. She said attempts to serve the IIEC with the legal papers were futile as the officials were away in Mombasa.
The applicants also accused the respondents of disrespecting the court by publishing the referendum results.
Although the five judges all agreed to dismiss the file petition, their reasoning differed. Justices Omondi, Mukunya and Mohamed were all in the same camp while Justices Kantai and Mavisi held different reasoning. The majority ruling carried the day.
Ms Ariviza first filed her application on August 20.