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Vote date survives flurry of court cases

Paul Muhoho and Bernice Mbugua @PeopleDailyKe

Anxiety and intense speculation that had dominated talk yesterday over whether the repeat poll would take place dissipated after a flurry of court cases filed to stop the event ended variously without effect.

One case in the Supreme Court and three others in the High Court had all been certified urgent by Chief Justice David Maraga, who had overlooked a national holiday declared for yesterday, to recall judges who had election-related cases to dispense with them.

The Supreme Court had been the centre of focus as a petition filed by three activists who sought to have the election postponed looked like it could stagger the exercise.

But the Supreme Court was rendered dysfunctional to adjudicate on the postponement of the presidential election as the seven-judge bench lacked quorum by the time sitting commenced at 10.30am.

The Chief Justice was compelled to shelve the hearing of the application because he was unable to marshall the mandatory five-member quorum to handle the case.

Only Justice Isaac Lenaola was available while the other five Judges were absent, prompting Maraga, who doubles as the President of the Supreme Court, to adjourn the hearing of the matter that could have possibly derailed today’s voting.

Deputy Chief Justice Philomena Mwilu, whose driver was a victim of violent robbery the previous day, could not make it to work. Justice Mohamed Ibrahim has been unwell since mid-August and is undergoing treatment abroad.

Justice Njoki Ndung’u was reportedly out of Nairobi and could not secure a flight in time for the hearing while Justices Jackton Ojwang and Smoking Wanjala were missing in action for unexplained reasons.

Meanwhile, the High Court dismissed a case filed by former Kilome MP Harun Mwau which had sought to stop the fresh presidential election until nominations for candidates are done.

And separately, the High Court ruled that the process that led to the appointment of the 290 constituency returning officers and their deputies was illegal. Justice George Odunga, however, declined to quash the gazette notice on the appointment of the election managers which had been gazetted on October 12 on ground of public interest.

And in quick response to the judgment, the IEBC said on its Twitter handle that the officers will proceed to oversee the election since the judge did not quash their appointment.

“The order sought before Judge Odunga was for cancellation of the appointment of Returning Officers and deputies, which has been declined,” stated IEBC chairman Wafula Chebukati.

According to the Judge, IEBC failed to provide the political parties with the list of returning officers at least 14 days prior to their appointment as required by the Elections regulations 2012. Still in the High Court, a prayer seeking orders to bar Nasa supporters from demonstrating today was declined.

Justice John Mativo dismissed the suit filed by Kandara MP Alice Wahome, noting that since demonstrations are guaranteed and protected by the Constitution, there are relevant authorities that can handle the matter.

In the Supreme Court, lawyers appearing for the petitioners, Dr John Khaminwa and Harun Ndubi, expressed disappointment, claiming no convincing reasons had been offered for the failure by some judges to appear. Ndubi said the case had not collapsed since the Judiciary was the last port of call for all aggrieved persons.

Siaya Senator James Orengo, who led the legal team for Nasa, protested what he termed a ‘judicial coup’. The IEBC, President Uhuru Kenyatta, aspirants Ekuru Aukot and Japheth Kaluyu and the Attorney-General, Prof Githu Muigai, had opposed the application by activists Khelef Khalifa, Samwel Mohochi and Gacheke Gachihi to have the presidential poll postponed to pave way for fresh nomination of candidates by political parties. However, Nasa flag bearer Raila Odinga, said the election should not be held under any circumstances.

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