Kenya Elections: Supreme Court Fails to Hear Petition Over Quorum

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The Chief Justice David Maraga adjourned the Supreme Court hearing this morning, saying they couldnt continue with the matter because of quorum
25 Oct 2017 11:47
Justice Maraga
The Supreme Court of Kenya has failed to hear a petition seeking to stop the repeat presidential elections scheduled for tomorrow citing lack of quorum. The Chief Justice David Maraga adjourned the Supreme Court hearing this morning, saying they couldn't continue with the matter because of quorum.


"Regrettably and with due apology, this matter can't proceed to hearing this morning for a number of reasons," he said. He said only him and Justice Isaac Lenaola were available.  "As the two of us cannot form a quorum, this matter cannot be heard this morning," he said. The Supreme Court bench is comprised of seven justices.


Justice Maraga explained that the Deputy Chief Justice, Philomena Mwilu couldn't it make it to the court because of an attack on her bodyguard on Tuesday night. Unidentified gunmen shot Mwilu's bodyguard identified as Titus Musyoka opposite Impala Club along Ngong Road in Nairobi minutes after he dropped her boss.


He also disclosed that Justice Mohammed Ibrahim was unwell and out of the country. Maraga said justice Smokin Wanjala couldn't make it to court; Justice Jackton Boma Ojwang is out of the country while Justice Njoki Ndung'u was outside Nairobi but had managed to catch a flight to return for the hearing.


On Monday, three Kenyans led by Khelef Khalifa, the Director of Muslims for Human Rights filed a petition before the Supreme court to suspend the repeat polls, saying the Independent  Electoral and Boundaries Commission-IEBC was unable to conduct credible polls.


In his affidavit, President, Uhuru Kenyatta asked the court to disregard the petition, saying the petitioners didn't present credible evidence showing that the elections will not be credible and that grievous harm would be done once the polls are cancelled.


In an earlier ruling, Justice Isaac Lenaola said all the Returning Officers were appointed in disregard of the law since the Commission didn't consult the presidential candidate. He, however, said he couldn't give any orders in the interest of the national good.


Paul Muite, the IEBC lead lawyer welcomed the ruling, saying it means Kenyans will go to the polls on Thursday as planned. "Prepare to go to the polls," he told journalists outside the Supreme Court building.


But James Orengo, one of the lead lawyers of the National Alliance Super Alliance-NASA, said what happened in court is a clear indication that the IEBC is operating without the input of the chairman. "Chibukati has become a passenger in the commission," he said.


He explained that what is left isn't capable of running the elections. "I think the lack of quorum isn't by coincidence or accident," he said. Adding that "The attempt on the bodyguard of the Deputy Chief Justice was an attempt on her life. All in all, there is an attempt to undermine independent institutions of government like IEBC," he said.


He, however, said they were not yet done.  "This isn't the end. The high court has ruled that the gazetting of all RO is illegal. As we speak it means there is no competent person to preside over the polls. In the last 48 hours, there have been attacks and arrests of people in the opposition.  It is really a sad day for Kenya; if the commission dares go on with the polls it will be illegal," he said.




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