• High Court Judge George Odunga on October 25, 2017, ruled that the appointment of the 290 returning officers and their deputies by IEBC was illegal.
• Koome told MPs that she was on duty in Nairobi at that time when she, together with Justices Fatuma Sichale and Erastus Githinji, made the decision.
Image: FILE
Chief Justice Martha Koome has lifted the lid on how she managed to be in the team of the Court of Appeal judges that decided the petition against the IEBC on a public holiday.
The 2017 case in which the Appeals court overturned the High Court ruling that found the appointment of IEBC returning officers as illegal featured prominently in Koome’s vetting.
Khelef Khalifa, a human rights activist and director of the Muslim for Human Rights (Muhuri), petitioned the National Assembly to reject the appeals judge’s nomination.
The petitioner told the Justice and Legal Affairs Committee that the judge lied to the Judicial Service Commission on why they held a sitting without the permission of then Chief Justice David Maraga.
He argued that on the said day, Interior CS Fred Matiang'i had declared a public holiday hence the court and its registries remained closed.
Khelef held that only courts that had the permission of the Chief Justice were sitting.
Among other concerns by the petitioner was how the judge who was based in Mombasa found her way to sit in Nairobi within the short notice.
But Koome in her account of the events of October 26, 2017, told MPs that she was on duty in Nairobi at that time when she, together with Justices Fatuma Sichale and Erastus Githinji, made the decision.
She said this was in accordance with the Court of Appeal practice that judges stationed out of Nairobi are required to serve in the capital for at least one week per month ‘to help reduce backlog of cases.’
Koome, in her affidavit, further averred that on the said date, she was notified by the Appeals court registrar that a matter had been certified as urgent by then head of the court Paul Kihara – now Attorney General.
She said Justice Kihara had directed that the matter be placed before a bench that included her and that she was required to proceed to the court for the urgent hearing.
Koome said the Constitution and the Court of Appeal Organisation Act do not provide for further permission from the Chief Justice once the Appeals court president allocates judges work.
“There is no law or regulation that requires that a judge of appeal dully allocated work by the president of court to seek further permission from the CJ.”
The incoming CJ says she made her way to the Supreme Court building where Nairobi Appeals court is situated at about 5pm and found Justices Sichale and Githinji.
Koome says she was given her file and proceeded to the chambers for perusal after which they proceeded to open court in full robes.
There is no law or regulation that requires that a judge of appeal dully allocated work by the president of court to seek further permission from the CJ.Incoming Chief Justice Martha Koome
She adds that while there, they heard the matter in the presence on the lawyers for the IEBC. Lawyers for the respondents were absent.
“This was since the matter had been certified as urgent and looking at what was at stake, the judges were satisfied that seriousness of the matter justified an urgent hearing,” her affidavit to MPs reads in part.
She said that after hearing the matter in open court, they retired to the chambers and after due consideration, returned to court with a ruling.
The team unanimously issued interim orders staying the decision of the High Court thus paving the way for the repeat presidential elections the following day.
Later, the Supreme court ruled that the High Court had no jurisdiction to issue the orders the Appeals court quashed – a decision Koome says vindicated them.
The apex court held that the returning officers, who were subject of the Khelef petition, lawfully held their positions and duly discharged their constitutional mandate of managing the election.
It thus found no validity to the petitioners’ claim that the said returning officers and their deputies lacked authority.
Koome told MPs that she was not clear on why “Khelef did not disclose the history of his spirited campaign against her”.
“In the premises (of the Supreme Court ruling), it was most unfortunate that Mr Khelef either through ignorance, recklessness could perjure himself by claiming that I life to the Judicial Service Commission when the record vindicate my position.”
She said the petitioner had made similar complaint before the JSC in April 2018 and that the same was dismissed in January 2019.