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Supreme Court pre-trial conference on petitions set for Tuesday

The date for Kenyatta’s swearing in if his election is upheld is will be November 28

NAIROBI, Kenya, Nov 11 – The Supreme Court will convene a pre-trial conference on Tuesday as it races against time to determine three petitions challenging the validity of last month’s repeat presidential election.

The court, according to Article 140 (2) of the Constitution has fourteen days from the date of the filing of a petition challenging the outcome of a presidential election to make a determination. The petitions were filed on Monday.

Accordingly, court guidelines require that a pretrial conference be convened within eight days of the filing of petitions within which time responses and applications by various parties including those wishing to be enjoined are to have made submissions.

On Wednesday, Chief Justice David Maraga directed respondents named in the petitions to respond to the petitions by 5 pm on Sunday with parties wishing to file applications with regards to any of the three petitions advised to do so by midday on Monday.

Responses to the applications are to be filed and served by 5 pm on Monday according to guidelines issued by Justice Maraga.

Parties wishing to be admitted in the petitions as friends of the court are required to file and serve applications by 5 pm on Monday.

During the pretrial conference on Tuesday, the Supreme Court bench will give crucial guidelines to parties litigating the matters including timelines within which counsel representing various parties shall make their oral submission in court.

Other than the petitions challenging President Uhuru Kenyatta’s re-election, the court is also seized of a petition filed ahead of the declaration of the outcome of the October 26 presidential election in which activist Okiya Omtatah contends that there was no election held.

Omtatah is challenging the electoral commission’s decision to proceed to conduct a presidential election on October 26 without conducting fresh nominations.

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Deputy Supreme Court Registrar Daniel Ole Keiwua on Friday said Omtatah’s matter will be heard by a bench to be constituted by Deputy Chief Justice Philomena Mwilu.

The directions on the petition were when parties to the matter filed submissions.
Omtatah filed the petition on grounds that the Independent Electoral and Boundaries Commission (IEBC) had overlooked the 2013 presidential election petition ruling which envisaged a situation where the only contenders in the fresh election would be President Kenyatta and National Super Alliance (NASA) candidate Raila Odinga.

Following Odinga’s pullout from the race on October 10, Omtatah argues that IEBC should have exited the scheduled election under Article 140 (3) of the Constitution and moved on to prepare for an election under Article 138 (8) (b) of the Constitution.

“The 26th October 2017 presidential elections held pursuant to Article 140(3) of the Constitution after the withdrawal of the NASA presidential and deputy presidential candidates is invalid, null and void ab initio,” Omtatah pleads in part of his three-point prayers before the court.

“The IEBC ought to have organized to hold fresh elections within sixty days of the 10th of October 2017, being on or before the 10th of December 2017, preceded by fresh nominations,” the activist argues.

The argument that a fresh election could be conducted under Article 138 (8) (b) following Odinga’s withdrawal, however, remains a hotly contested issue since the said Article anticipates the vacation of a scheduled election if a candidate in the election or his deputy dies before the scheduled election date.

Further to his pleadings, Omtatah also seeks to compel IEBC to conduct a fresh presidential election under Article 138.

If the court decides to annul the October fresh presidential election, it shall order a fresh one to be conducted within sixty days in accordance with Article 140 (3) of the Constitution.

If President Kenyatta’s election is upheld, he shall be sworn in on the seventh day following the ruling upholding his re-election in accordance with Article 141 (2) (b) of the Constitution.

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The date for Kenyatta’s swearing in if his election is upheld is will be on November 28.

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