, NAIROBI, Kenya, Oct 25 – The Supreme Court on Wednesday morning adjourned its scheduled sitting to determine a petition seeking the postponement of the October 26 fresh presidential election due to lack of quorum.
Chief Justice David Maraga said the case could not proceed since only he and Justice Isaac Lenaola were available to hear the matter filed by voters Samuel Mohochi, Gacheke Gachohi and Khelef Khalifa through lawyer Harun Ndubi.
“The absence of the other six judges makes it impossible for us to proceed for lack of quorum as set in Article 163 (2) of the Constitution,” Maraga announced saying a new date would be taken in the Court Registry.
Article 163 (2) states: “The Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.”
CJ Maraga explained to parties appearing before the apex court that Deputy Chief Justice Philomena Mwilu was unable to attend the proceedings due to the shooting of her bodyguard on Tuesday.
The bodyguard, Police Constable Titus Mutiso, was still admitted to a Nairobi hospital on Wednesday morning.
“Justice Mohammed Ibrahim is unwell and out of the country for treatment, Justices Jackton Ojwang’ and Smokin Wanjala are unable to come to court whereas Lady Justice Njoki Ndung’u is out of Nairobi and has been unable to get a flight back in time for this hearing,” Maraga explained.
National Super Alliance (NASA) lawyers led by Senator James Orengo (Siaya) and Paul Mwangi however took issue with reasons given for the absence of Justices Ojwang’, Wanjala and Ndung’u, saying the explanation for their absence was not convincing enough.
“Our take is that the constitutional order in Kenya is being overturned because these are not ordinary circumstances,” Orengo stated.
He noted with concern failure by the Independent Electoral and Boundaries Commission (IEBC) Chairperson Wafula Chebukati to file submissions before the court, electing instead to allow his deputy, Commissioner Consolata Nkatha to do so.
“Chebukati has not filed anything in support or against today’s proceeding. It is clear that IEBC is operating without the input of the Chairperson and in fact, Chebukati has become a passenger in the commission,” Orengo claimed.
He further cited a High Court ruling rendered by Justice George Odunga in which the IEBC was found to have erred in appointing the 290 Constituency Returning Officers and their deputies.
“The respondent (IEBC) was under a constitutional and statutory obligation pursuant to Regulation 3(2) of the Elections (General) Regulations, 2012 to provide the list of persons proposed for appointment to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them make any representations,” Odunga ruled.
“In so doing the respondent (IEBC) violated Regulation 3(2) of the said regulations as read with Articles 38 and 81 of the Constitution,” he further ruled.
He however declined to order cancellation of Thursday’s presidential election saying such an order would be counterproductive to the electoral process.
“Since there is no prayer seeking either the cancellation of the fresh elections due for 26th October 2017 or their postponement, it would not be efficacious to grant the orders herein in the manner sought,” Justice Odunga declared.
“Therefore without sanitizing the said process, I decline to issue the reliefs sought herein in the exercise of my discretion not based on lack of merit, but on public interest,” he explained.
Independent presidential candidate Japheth Kaluyu who was present at the Supreme Court with his running mate Muriora Kariora welcomed Maraga and Odunga’s directives, saying it was important that the election is held within sixty days since the annulment of the August 8 presidential election as ordered by the apex court.
Kaluyu said an extended period of politicking was hurting the economy.
“I am happy that we’re going for elections tomorrow and if I do not win I will support whoever emerges the winner so that we’re able to move forward,” the US-based Kenyan citizen said.