BY KORIR JUMA,NAIROBI,10TH NOV 2017-All eyes are now upon the deputy chief Justice Philomena Mwilu who has been given responsibility to constitute a judge bench to hear a petition filed at the Supreme Court challenging the electoral commission’s decision to proceed to conduct a presidential election on October 26 without conducting fresh nominations.
Deputy Supreme Court Registrar Daniel Ole Keiwua issued directives on Friday when parties to the matter filed submissions.The petition was filed by activist Okiya Omtatah prior to the declaration of last month’s fresh presidential election results .
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 Uhuru 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.
In a replying affidavit, Mary Karen Kigen-Sorobit, Jubilee Party’s Deputy Chief Executive Officer and Director of Legal Affairs and Compliance avers that the October election could not have been conducted under Article 138 since the scenarios outlined therein had not occurred.
“I have been advised by the 1stInterested Party’s (Kenyatta’s) advocates on record which advice I verily believe to be true that the decision in Raila 2013 and in particular in paragraph 290 was given obiter and therefore not binding law,” Kigen-Sorobit pens in her affidavit opposing Omtatah’s petition.
Also cited is Orange Democratic Movement’s (ODM) pleading in court in which the party supported Aukot’s inclusion during the case which resulted to IEBC issuing an addendum gazetting the Thirdway Alliance leader and later all the candidates who took part in the August 8 presidential election annulled by the Supreme Court on September 1, as candidates for the fresh poll.
“The fourth Respondent (ODM) supports the petition on grounds that: – (a) the Gazettement in question is discriminatory, unconstitutional and invalid to the extent it excludes the petitioner from the elections; (b) the “2013 Raila Case” is distinguishable from this case; (c) this court has inherent jurisdiction to determine this case.”,” Kigen-Sorobit quoted submissions made by lawyers representing the Odinga-led ODM party before Justice Mativo’s court.
Omtatah, however, dismissed President Kenyatta’s and IEBC’s grounds of opposition to his petition saying the apex court has jurisdiction on the matter.