10 cases stand in the way of Kenya's repeat election

President Kenyatta and Nasa leader Raila Odinga. Their political duel is being fought on many fronts in the corridors of justice. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • Five of the cases were filed soon after Nasa presidential candidate Raila Odinga withdrew from the repeat poll.
  • Three others have to do with the transmission of results, a contentious matter that led to the nullification of the August 8 presidential poll.

About 10 cases are pending before the High Court whose judgments might affect the repeat poll slated for Thursday, October 26.

Most of these cases will be heard on Monday morning, with some parties determined to stop the repeat poll.


Five of the cases were filed soon after National Super Alliance (Nasa) presidential candidate Raila Odinga and his running mate Kalonzo Musyoka wrote to the Independent Electoral and Boundaries Commission (IEBC), withdrawing from the repeat poll.

Three others have to do with the transmission of results, a contentious matter that led to the nullification of the August 8 presidential poll.

Among the cases are one filed by former MP John Harun Mwau who is challenging IEBC’s decision to organise the repeat poll without fresh nominations.

He holds that the Supreme Court had directed IEBC to hold fresh polls and according to him, all candidates intending to vie the country’s top seat should be nominated as per the Elections Act.

He argues that it was clear that IEBC and Mr Wafula Chebukati are seeking to waive provisions of the Constitution and the law yet they don't have the power to do so.


It is his argument that the Supreme Court will invalidate the election because the commission flouted the law.

Separately, a lobby group, Uzalendo Institute of Leadership and Democracy, wants the High Court to interpret the term “fresh election” and what Mr Odinga’s withdrawal means.

The lobby, through lawyer Chege Kamau, wants the court to interpret what the term “fresh election” as provided in Article 140 means as well as “presidential elections” and “general elections” as provided under section 13 of the Election Act.

Mr Kamau argues that the court should explain the terms, especially after Mr Odinga’s pullout.

Still before the High Court, Pokot South MP David Pkosing has sought to compel Nasa leaders to participate in the repeat poll.


The case was argued in the absence of Nasa representatives after they failed to respond despite being served with court papers.

Mr Pkosing has named Mr Odinga, Mr Musyoka ands their co-principals Musalia Mudavadi and Moses Wetangula as respondents in the case.

According to the MP, if the fresh presidential election aborts, Kenya will be plunged into a constitutional crisis.

Another case pending before the court is a petition filed by activist Okiya Omtatah, who wants the court to temporarily bar IEBC from going ahead with the repeat poll plans.

According to Mr Omtatah, Mr Odinga said he pulled out of the race because the IEBC had failed to undertake basic reforms to ensure credibility.


He says failure to hold the election would inevitably require the formation of a caretaker government to be in charge of the country for the 60 days provided for under Article 138(9) of the Constitution, within which the IEBC is required to hold fresh elections.

At the Court of Appeal, a Narok voter Abraham Mutai wanted the court to stop the October 26 presidential poll but he withdrew the case at the last minute.

Mr Mutai moved to the court arguing that the withdrawal of Nasa from the poll automatically triggered the cancellation of the planned election.

At the Supreme Court, Mr Jackson Ndegwa and Mr Edward Kings Onyancha want to the court to reverse its decision nullifying the August 8 presidential election.

The case was, however, rejected by Deputy Registrar Daniel ole Keiwua.


They appealed against the decision and were directed to file their documents and appear before a single judge to convince him as to why the case should be admitted.

On Friday, Jubilee and Nasa lawyers will appear before the Supreme Court Registrar for directions in a case filed by the ruling coalition.

Jubilee wants Nasa leaders found in contempt of court for allegedly disobeying court order by planning to disrupt the repeat poll.

And the latest case was filed on Thursday by Kiambu Town MP Jude Njomo, who wants a clarification of the Supreme Court decision of 2013 on Article 138(8) and in its interpretation.

He says judges inserted the term “abandons”, which is not included in Article 138(8)(b) of the Constitution.

The MP wants the court to clarify what happens when a candidate withdraws after fresh elections have been called.


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