Supreme Court judges will Tuesday morning start a race against time hearing and determining three petitions filed in relation to the October 26 rerun presidential election in just six days.
Unlike in August when there was one petition, this time there are three, meaning more lawyers will be arguing out their cases under a strict timeline.
This is the second time in three months that the judges, led by Chief Justice David Maraga, are being called upon to determine the validity of a presidential election.
The others are Deputy Chief Justice Philomena Mwilu, Justice Jackton Ojwang, Justice Smokin Wanjala, Justice Njoki Ndung’u and Justice Isaac Lenaola.
Justice Mohamed Ibrahim missed most of the August case because of illness, and by Monday, it was not clear if he will be available.
The court is properly constituted when it has a quorum of five judges.
On September 1, the judges voted 4-2 to nullify the August election, citing irregularities and illegalities after Nasa candidate Raila Odinga challenged incumbent Uhuru Kenyatta’s victory.
Mr Odinga pulled out of the repeat poll, arguing that the electoral reforms his party had suggested to level the field had not been carried out.
However, he refused to go to court and instead, it is former Kilome MP Harun Mwau and two human rights activists Njonjo Mue and Khelef Khalifa who have challenged the validity of the result.
The third petition, filed by the Institute for Democratic Governance (IDG), challenges the court’s jurisdiction to hear the other two petitions.
Mr Mwau’s petition will be the first to be argued followed by that of Mr Mue and Mr Khalifa and then that of IDG.
The judges will converge in the morning for a pre-trial conference before embarking on the marathon hearing.
During the conference, which will start at 11am, parties will identify their lead lawyers and the court will allocate each party time to argue their case and also decide who to admit in the case as interested parties and amicus curiae (friend of the court).
Dr Ekuru Aukot of Thirdway Alliance was the first to file his application, seeking to join the case.
Attorney-General Githu Muigai and the Law Society of Kenya have also filed applications to join the cases.
By Monday evening, all the parties had filed their responses and submissions, alongside the issues for determination.
Independent Electoral and Boundaries Commission (IEBC) has framed four issues to be determined.
It wants the court to declare that it conducted the fresh presidential election within the strict confines of the Constitution and the electoral laws and that President Uhuru Kenyatta was duly elected.
The commission further wants the court to declare that there is no requirement for nomination in a fresh presidential election, where the nomination of the candidates was not an issue in a previously invalidated presidential election.
IEBC will also be seeking costs of the suit.
President Kenyatta wants the petitions dismissed and the court to make a finding and declaration that his election was valid.
He is also seeking costs of the petitions.
Nasa says that President Kenyatta was not duly elected and the election was invalid and conducted against the principles enshrined in the Constitution.
The Institute for Democratic Governance wants the judges to determine whether they have the jurisdiction to hear and determine the petition and whether Nasa principals led by Mr Odinga committed electoral offences and engaged in serious electoral malpractices and/or irregularities.
The organisation further wants the court to determine if the public suffered loss and damage as a result of Nasa’s acts of violence and conduct.
It argues through lawyer Kioko Kilukumi that Nasa’s ‘irreducible minimums demands’ were unilaterally set with the intention of undermining the independence of the Commission.
The lawyer further says Mr Odinga, his running mate Kalonzo Musyoka, Musalia Mudavadi and Senators James Orengo (Siaya) and Moses Wetang’ula (Bungoma) were determined to ensure that the October 26 election did not take place.
“They led, engaged in and or facilitated violence, intimidation, hate speech and threats to voters and election officials, especially in the respondents’ strongholds.
“All this was aimed at instilling fear among voters in order to keep them away from voting.
“The activities orchestrated by the respondents were criminal in nature and in violation of the express provisions of the Election Offences Act, 2016,” the submissions filed in court read.
IEBC says it engaged Nasa on its demands but given the limited period that it had to deal with pre-poll matters, it was only able to meet some of the conditions.