Case challenging repeat poll fails to take off on Supreme Court quorum hitch

From left: Supreme Court judges Njoki Ndung’u, Philomena Mwilu (deputy chief justice), David Maraga (chief justice), Jackton Ojwang and Isaac Lenaola in Nairobi on September 20. PHOTO | JEFF ANGOTE
From left: Supreme Court judges Njoki Ndung’u, Philomena Mwilu (Deputy Chief Justice), David Maraga (Chief Justice), Jackton Ojwang and Isaac Lenaola in Nairobi on September 20, 2017. PHOTO | JEFF ANGOTE 

The Supreme Court on Wednesday failed to proceed with the hearing of a petition challenging the repeat presidential election scheduled for tomorrow (October 26) due to a quorum hitch.

Only Chief Justice Maraga and Justice Isaac Lenaola out of seven judges were present when the court convened at 11am.

Justice Maraga started off by regretting that the hearing will not proceed as expected.

He said most of the judges were away yet the court requires at least five judges to be properly constituted.

"Following events of last night, Deputy Chief Justice Philomena Mwilu is not in a position to come to court.” Judge Maraga said.

“Judge Mohamed Ibrahim is unwell and is out of the country.”

He said Justice Jackton Ojwang and Smokin Wanjala were not able to attend the court session while Justice Njoki Ndung’u was out of Nairobi and not able to come to court.


“The matter is adjourned to a date to be taken at the registry,” Justice Maraga said.

Three members of the civil society has asked the apex court to cancel or reschedule the election

Justice Maraga on Tuesday certified as urgent the case by Khelef Khalifa, Samuel Mohochi and Gacheke Gachihi.

Mr Khalif is the director at Muslim for Huma Rights, Mr Mohiochi is the executive director at the International Commission on Jurists (ICJ) while Mr Gachihi contested and lost the Mathare parliamentary seat.

The three activists argued that the prevailing political environment in the country cannot guarantee a credible poll.

IEBC ability

They alleged that there exists an active sabotage of the fresh election, dealing a blow to IEBC ability and capacity to conduct a credible poll.

Further the three—through their lawyers John Khaminwa and Harun Ndubi— argued that IEBC commissioners are deeply divided and cannot guarantee a fair poll.

The impact of the apex court's decision to call off the sitting was not immediately clear but lawyers argued that it effectively paved way for the repeat poll to proceed as planned.

Since there were no orders issued stopping the repeat election, they argued that the Thursday poll would go on as planned.

They said it was clear that the orders sought by the three applicants could not be granted until after the repeat election.