Senior counsel showdown: Top legal minds face off in presidential poll petition
All eyes will, from today and for the next 14 days, be focused on the seven judges of the Supreme Court, who have until September 5 to determine whether or not the president-elect won validly.
Deputy President William Ruto was declared winner of the presidential election and the apex court, led by Chief Justice Martha Koome, has 14 days to hear and determine the case expected to be lodged by Azimio la Umoja One Kenya Coalition Party candidate Raila Odinga, who has described Dr Ruto’s win a nullity which he said should be overturned. For Chief Justice Koome and Justice William Ouko, this will be their first presidential election petition to preside over, after they were promoted from the Court of Appeal.
For Justices Dr Smokin Wanjala and Njoki Ndung’u, this will be their fourth petition, having joined the Supreme Court when it was first started in 2011.
For Justice Mohamed Ibrahim, who joined the apex court with the duo in 2011, this will be his second presidential election petition to preside over after he opted out of the 2017 cases over health issues.
Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola will also be hearing such a petition for a third time having sat and decided on the 2017 matters.
The Supreme Court, like it did in 2017, has the power to quash the election of a president, and order fresh elections within 60 days.
And so, the biggest legal battle of the year begins today with both camps having lined up the country’s top legal minds and litigators for the do-or-die battle pitting Mr Odinga on one side against Dr Ruto and the Independent Electoral and Boundaries Commission (IEBC) and its chair Wafula Chebukati on the other.
It is not clear whether four IEBC commissioners—Juliana Cherera, Francis Wanderi, Irene Masit, and Justus Nyang’aya—who disowned the results declared by Mr Chebukati, will file a separate case or file supporting affidavits to support Mr Odinga’s case.
The deadline of filing the presidential petition is today at 2pm, according to a notice issued by the Judiciary. Among the lawyers set to represent Mr Odinga is former Director of Public Prosecutions (DPP) Phillip Murgor, Mr Pheroze Nowrojee, a seasoned constitutional and human rights lawyer, and Mr James Orengo, the Siaya governor-elect. All are senior counsels. For the Kenya Kwanza Alliance’s Dr Ruto has gone for President Kenyatta’s former lawyer Fred Ngatia and Mr Ahmednassir Abdullahi. Both are also senior counsels.
Other lawyers in Dr Ruto’s corner are Mr Katwa Kigen and Prof Kithure Kindiki, his long-time advocates. IEBC, on its part, has tapped former Attorney-General Prof Githu Muigai to be the lead counsel in the anticipated petition. Prof Muigai will be working with lawyers Kamau Karori, Abdikadir Mohamed, Eric Gumbo, Wambua Kilonzo, Peter Wanyama, George Murugu, Mahat Somane, Cyprian Wekesa and Edwin Mukele. In the BBI case, Mr Karori was representing the Attorney General.
Raila Odinga team
Mr Nowrojee was among the lawyers who represented Mr Odinga in the 2017 petition which led to nullification of President Kenyatta’s re-election.
He was admitted to the Bar in 1967 and led the Law Society of Kenya (LSK) the following year, 1968 to 1969. Over the years, he has been involved in various politically sensitive cases.
In 1990, the soft-spoken lawyer was charged with contempt of court for protesting delays in the case concerning the widow of slain government-critic Anglican Church Bishop of Eldoret Alexander Muge.
The charges stemmed from a letter Mr Nowrojee wrote to the Registrar of the High Court protesting delayed determination of case of Ms Herma Muge (now deceased). Mr Nowrojee also represented lawyer-cum-politician Gitobu Imanyara, the editor of the Nairobi Law Monthly in September 1990 following the ban of the magazine by the government. Mr Nowrojee obtained a stay order against the government’s decision to ban the magazine.
The former Director of Public Prosecutions (DPP) is the Managing Partner of Murgor & Murgor Advocates and boasts an experience of 35 years in legal practice.
He was admitted to the Roll of Advocates in 1986 and served as country’s DPP from 2003 to 2005.
He had previously worked as state counsel at the Attorney General’s office for eight years after graduating from law school.
He is also a Member Grade of the Chartered Institute of Arbitrators, London Court of International Arbitration and a member of the International Association of Prosecutors.
In 1992 Mr Murgor was appointed to the legal team that defended President Daniel Arap Moi in court in the election petition filed after the first multiparty elections. He is a holder of Master of Laws (LLM) in International Trade and Investments Law, University of Nairobi (2011). In 2021 he was among those interviewed for the Chief Justice position.
James Aggrey Orengo
Mr Orengo, a veteran lawyer and one of the longest serving lawmakers, was also in the 2017 legal team of Mr Odinga that petitioned the Supreme Court to nullify the re-election of President Kenyatta.
In 2021 he represented Mr Odinga in the Building Bridges Initiative (BBI) case at the Supreme Court. He started activism in 1970s when he was a student leader at the University of Nairobi. He graduated in 1974 with Bachelor of Law (LLB).
He is also a former detainee and advocate of multiparty democracy. In 2002 he vied for presidency and lost to Mwai Kibaki
William Ruto team
Mr Ngatia was also in 2021 interviewed by the Judicial Service Commission for the Chief Justice’s job. Having represented President Kenyatta in three presidential election petitions (2013 and two in 2017) at the Supreme Court, Mr Ngatia comes with long experience of handling presidential petitions.
Mr Ngatia was admitted to the Roll of Advocates in 1980 has 41 years of experience in the legal profession. His academic and professional qualifications include Master of Applied Philosophy and Ethics from Strathmore University (2019), Master of Laws from London School of Economics, University of London (1984), Bachelor of Laws from the University of Nairobi (1979) and Post Graduate Diploma in Law from the Kenya School of Law (1980).
Mr Abdullahi is not new to presidential petitions. In 2013 and 2017 he represented the IEBC.
He is a former member of the Judicial Service Commission (JSC) and has 29 years of experience in legal practice. He was admitted to the roll of advocates in 1993. Mr Abdullahi is the publisher of the Nairobi Law Monthly and former chairperson of the Law Society of Kenya (2003-2005).
Mr Kigen, who was admitted to the Bar in 1996, has represented Dr Ruto in various cases. He holds a Bachelor of Laws LL.B (Hons) degree from the University of Nairobi.
Prof Kithure Kindiki
Prof Kindiki, the outgoing senator of Tharaka-Nithi County, holds a Master’s in International Human Rights Law and Democracy and a PhD in International Law, both from the University of Pretoria, South Africa.
He served as Secretary of the National Cohesion in the Ministry of Justice soon after the 2008 post-election violence and was instrumental in the drafting of the National Cohesion and Integration Act.
However, he resigned after three months and accused the government of lacking political will to resettle hundreds of thousands of people who were displaced by the 2007/08 post-poll skirmishes.
He was thrown into public limelight when DP Ruto appointed him to his legal team when he faced crimes against humanity charges at the ICC.
The Wafula Chebukati team
Prof Githu Muigai
Prof Muigai holds an LLB and a PhD from the University of Nairobi, an LLM from the Colombia University Law School and Diploma in law from the Kenya School of Law. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb). He was admitted to the Bar in 1985.
Mr Karori also deals with constitutional petitions, dispute resolution, commercial and tax disputes. He has been involved in the resolution of various commercial disputes in the High Court, Court of Appeal and Supreme Court. He is also a Fellow of the Chartered Institute of Arbitration (Kenya branch).
Mr Gumbo holds a Bachelor’s degree in Law from Moi University. He is also a Member of the Chartered Institute of Arbitrators. Mr Gumbo was part of the team selected to advise and represent IEBC in all the past three Presidential election petitions filed in in the Supreme Court.
He is also the Board Chairperson for the Legal Aid Centre for Eldoret. He is a trial lawyer and is also engaged in dispute resolution as well as being a transactional adviser for international commercial transactions.