Supreme Court throws out Moses Kuria's petition, rejects Ruto's move against LSK

The Supreme Court has dismissed a request by President-elect William Ruto to lock out six IEBC commissioners from participating in the Presidential election petition, setting stage for their differences to play out before the judges.

At the same time, the court has allowed the Law Society of Kenya (LSK) and the International Commission of Jurists (ICJ Kenya) to participate in the legal proceedings as friends of the court (amicus curiae).

Dr Ruto had also opposed participation of the LSK in the proceedings on grounds that the lawyers’ body could not be neutral in the dispute because one of the petitioners, Martha Karua, is a member and a former leader.

The seven-judge bench led by Chief Justice Martha Koome also declined Dr Ruto’s request to strike out the petition filed by rights activist Okiya Omtatah over allegations that it was defective.

The court also threw out requests by Agano Party presidential candidate Wahiga Mwaure, journalist Milton Nyakundi Oriku and voter Julius Orenge to participate in the petitions as interested parties.

In addition, the court has struck out the petition filed by outgoing MPs Moses Kuria (Gatundu South) and Geofrey King’ang’i (Mbeere South) seeking dismissal of the case lodged by Azimio la Umoja-One Kenya coalition party leader Raila Odinga against election of Dr Ruto as President.

The court directed that the sum of Sh1 million Mr Kuria and Mr King’ang’I had deposted as security of costs to be refunded to them.

In another blow to Dr Ruto’s Kenya Kwanza Alliance, the top court disallowed a request by the Farmers Party to be admitted in the petitions as a friend of the court.

At the same time the court admitted Mr John Walubengo, Dr Joseph Sevilla and Martin Mirero as friends of the court. However, they will not make oral arguments during the court proceedings.

A bid by citizens Julius Orenge and Michael Mutembei to be admitted as friends of the court were rejected.

The apex court in addition allowed Attorney General Paul Kihara Katroiuki’s request to admit in court’s record the replying affidavits of the Head of Public Service Dr Joseph Kinyua and Dr Kennedy Kihara (Principal Administrative Secretary at the Office of the President).

In another ruling, the court allowed admitted on record the Replying Affidavits of four members of the electoral commission Juliana Cherera (vice chairperson), Justus Nyangaya, Francis Wanderi and Irene Masit.

While declining to lock the commissioners of the Independent Electoral and Boundaries Commission (IEBC) from the legal proceedings, the court said they are crucial to the presidential election dispute.

This is because the main grounds of the petitions are based is that the polls agency failed to perform its functions as stipulated in the Constitution.

Dr Ruto was particularly opposed to participation of Commissioners Juliana Cherera (vice chairperson), Francis Wanderi, Irene Masit and Justus Nyang'aya. The four disowned the presidential election results declared by IEBC chairman Wafula Chebukati.

Urging court to lock out the commissioners out of the court dispute, Dr Ruto argued that the commissioners being members of the IEBC, an independent constitutional and corporate entity, cannot be sued in their individual capacity.

To support his argument he cited Section 15 of the IEBC Act, 2011 which protects the commissioners from being personally liable for any acts done in good faith and in the execution of the Commission’s powers, functions and duties.

But the court ruled that the petitions challenging Dr Ruto’s election are based on claims that the IEBC chairman excluded four commissioners at the tail end of tallying and verifying election results.

“This failure as claimed by the petitioners, was occasioned by the exclusion of the Juliana Cherera (vice chairperson), Francis Wanderi, Irene Masit and Justus Nyang'aya from the verification and tallying process by the chairman Wafula Chebukati,” said the court.

This claim, the judges said, is based on a highly publicized Press statement by the four commissioners disowning the declaration of the Presidential Election results by the chairman.

“This statement by the four respondents brings them squarely within the ambit of grievance by the petitioners. The latter cannot be faulted for seeking to place before the Court any evidence emanating from the four. To use Section 15 of the IEBC Act, as a shield, would be tantamount to suppressing evidence,” the court ruled.