The high court yesterday dismissed a case in which Activist Okiya Omtatah was seeking for the establishment of a caretaker government.
Justice Mativo ruled that he had no jurisdiction to hear the case saying that the issued raised in the petition have a bearing in the presidential elections scheduled for October 26 and fall within the opinion rendered by the Supreme Court.
“I am constrained to find and hold that the substantial issued raised in this petition are outside the jurisdiction of this court” He ruled.
In the petition, Omtatah wanted the court to compel President Uhuru Kenyatta to vacate office by midnight on November 1 and IEBC to hold fresh elections within sixty days from the said date.
Omtatah had further argued that the president ceased occupying office upon the nullification of his election by the Supreme Court.
He also wanted the IEBC to be stopped from declaring Kenyatta president after NASA presidential candidate Raila Odinga withdrew from the repeat presidential election.
However, all the respondents and interested parties in the case including Kenyatta’s Lawyer Fred Ngatia had submitted that the high court had no jurisdiction to hear the matter.
Ngatia argued that if the court were to grant an order for the Chief Justice to midwife the electoral process then this will out rightly violate the doctrine of separation of powers and that the caretaker government sought will be formed in a manner not contemplated under the law.
Alphonse Mutinda representing the AG also argued that the petition raised substantial points of law in that it invites the court to determine issues of great public importance relating to the presidential elections scheduled for October 26.
Omtatah opposed their views arguing that the court had jurisdiction saying that the relevant legislation is not in place in the form of legal notice no. 7 of 2011 that is the Supreme Court presidential election petition rules.
In his ruling Mativo who raised the issue of jurisdiction said that he had in mind the provisions of Article 163 (3) of the constitution which provides that the Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to elections to the office of the president arising under Article 140.
“Article 163(7) provides that all courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.” Mativo ruled.
He further ruled that the other issues raised in the petition which can safely be said to be within the jurisdiction of the court touch on events that have not taken place and it raises a question of the fundamental doctrine or ripeness.
“The other issues raised in this petition which fall within the jurisdiction of this court are not ripe for determination and appear to be grounds challenging a presidential election after the declaration of the results.” The judge noted.
Judge Mativo also noted that Whereas Article 138(8) addresses the question of what would happened in the event of death of a candidate or where no candidate is nominated the question of withdraws of a candidate after nomination or gazettement had not been addressed in the constitution.
“In my view, since the election is a process as correctly pointed out by the Supreme Court, where a candidate withdraws in the course of process which is clearly an issue that has a bearing on the process, then it is my view that such a dispute falls within the jurisdiction of the Supreme Court.” Judge Mativo ruled.