Fred Ngatia at the Supreme Court on Tuesday/MOSES MUOKI
NAIROBI, Kenya, Nov 14 – President Uhuru Kenyatta has made an application seeking to have the National Super Alliance (NASA) expunged from a petition pursuing the nullification of his win in the October 26 presidential election.
Through lead counsel Fred Ngatia, President Kenyatta told the Supreme Court Tuesday evening that NASA had instead of filing a substantive petition within timelines required in law used the opportunity as a respondent to sneak in arguments outside a petition filed by activists Njonjo Mue and Khelef Khalifa, an action Ngatia said the court must not condone.
According to Ngatia, submissions filed by NASA in response to the Mue-Khalifa petition had raised new issues altogether, instead of replying to the petition which among other things cites NASA presidential candidate Raila Odinga’s withdrawal from last month’s poll as having negatively impacted the conduct of the election.
“It will not be possible to be able to answer two petitions; one which we’ve already answered and the other one which cannot be answered,” Ngatia told the Supreme Court bench under the leadership of Chief Justice David Maraga.
“The fact is that the withdrawn candidate is no candidate at all. He’s simply gone out of the picture and his involvement therefore in this context cannot be understood other than that of coming to so to speak confuse issues,” he added.
The court also heard an application by Jubilee Party seeking to be enjoined in a petition filed by the Institute for Democracy and Governance (IDEG) even as NASA lawyers contested its admissibility on grounds that it fails to meet the threshold for presidential petitions under Article 140 of the Constitution.
Article 140 (1) states: “A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.”
The IDEG petition seeks among other outcomes to have NASA presidential candidate Raila Odinga, his running mate Kalonzo Musyoka, co-leader Musalia Mudavadi, and Senator Jmaes Orengo and Moses Wetangula convicted of an election offence as a result of the actions they undertook following their boycott of the presidential election, action which the petitioner argues impeded the poll in part of the country.
The other key outcome being sought by IDEG is a declaration that the five are unfit to hold public office and that they should be held liable for losses arising from acts of violence and intimidation they perpetuated during the election.
NASA’s lawyer Paul Mwangi argued that the petition by IDEG does not qualify under the said Article and should, therefore, be dismissed.
IDEG’s lawyer, however, maintained the petition was within the jurisdiction of the court citing Article 163 (3) (a) of the Constitution which allows the court to determine disputes relating to the election of a President arising under Article 140.
“Article 163 (3) (a) is so broad such that it allows this court an exclusive jurisdiction to handle anything (dispute) relating to that election,” lawyer Kioko Kilukumi.
“The Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140,” the said Article reads in part.
The section of the law, however, states that the jurisdiction of the court under Article 163 (3) (a) shall be subject to clause four (4) and five (5) of the same Article, and the appellate jurisdiction to hear and determine appeals from – the Court of Appeal and any other court or tribunal as prescribed by national legislation.
Following the hearing of the two applications, the court adjourned for two hours to reconvene at 8pm Tuesday night.
Justice Maraga reiterated that the court will conclude the pre-trial of three petitions before it by the end of the day in accordance to Supreme Court rules which require a pre-trial sitting be held within eight days of the filing of petitions.
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