NAIROBI, Kenya, Mar 11 – Petitions arising from a presidential election are heard and determined in a process whose timelines are strict and guided by the law.
The law provides that the aggrieved party files its petition within seven days after the declaration of the presidential results.
The Supreme Court has 14 days within which to hear and determine the petition as required by Article 140 (2) of the Constitution. It is the court with original and exclusive jurisdiction over disputes in the presidential election.
The law lists the president-elect and the independent Electoral and Boundaries Commission (IEBC) as principal respondents among other persons that the petitioner wishes to name as a respondent.
The petitioner is required to serve the respondents within three days of filing; directly or by advertisement in a newspaper with national circulation or electronically.
A respondent is given three days within which to file responses.
A pre-trial conference is held nine days after the petition is filed, at which the court frames contested and uncontested issues in the petition.
The hearing of the case starts proper within two days of the pre-trial conference.
The Supreme Court bench is considered correctly constituted if it has at least five of the seven judges.
Rule 13 of the Supreme Court states that: “ The court shall be properly constituted for purposes of hearing and determining a petition filed pursuant to these rules, if it is composed of not less than five judges.”
The petitioner is required to deposit, upon filing the petition Sh1 million as security for costs.
The court may on its own motion if no security is given or on an application by the respondent, issue an order directing the dismissal of the petition and for payment of the respondent’s costs.
People seeking to be joined as respondents are supposed to apply to be joined although the petition can be heard and determined without their participation.
At the conclusion of the hearing of an election petition, the court may make an order dismissing the petition; declaring the election of the president-elect to be valid; or invalid or invalidate the declaration made by the IEBC.
While the court will give its decision at the end of the hearing, its reasons for the decisions are not to come immediately.
According to Article 140 (3) of the Constitution a fresh election shall be held within 60 days after of determination the finds the election of the president-elect to be invalid.