The hearing of an application to stop today's presidential election failed yesterday because of lack of quorum in the Supreme Court, deepening the intrigues surrounding the poll.
Only Chief Justice David Maraga and Justice Isaac Lenaola out of seven judges were present when the court convened at 11am. The court requires at least five judges to be properly constituted.
Maraga made a last minute decision not to proceed with the hearing, despite an earlier indication by the Supreme Court it will hear the petition filed by three activists.
Lenaola did not appear before the court, leaving the CJ to make the announcement to parties alone in a less than 10 minutes. Lawyers were caught off guard.
“We regret the hearing will not proceed as expected,” Maraga told lawyers.
"Last evening [Tuesday], you all know what happened to Deputy Chief Justice Philomena Mwilu's guard. She is not in a position to come to court," Judge Maraga added.
The guard was shot and injured after dropping off the Mwilu.
“Judge Mohamed Ibrahim is unwell and is out of the country," Maraga said.
Although he did not give a reasons for judges Jackton Ojwang and Smokin Wanjala not being in court, the CJ said, “They are not able to attend the court."
Justice Njoki Ndung’u was out of Nairobi and was not able to come to court, because she could not get a flight back.
“The matter is hereby adjourned to a date to be taken at the registry," Maraga said.
On Tuesday, the court directed all parties to file all documents by yesterday morning, and said the case will proceed at 10 am, notwithstanding it may be a public holiday.
All parties, except IEBC chairman Wafula Chebukati, whose lawyer Peter Wanyama said he would make oral submission, had complied with the directive to filetheir documents.
Khelef Khalifa, Samuel Mohochi and Gacheke Gachihi had asked the court to cancel or postpone the election on grounds the Chairman has indicated he
cannot guarantee credible polls.
The activists further said IEBC commissioners are divided and they cannot be trusted to hold the fresh poll.
Had the court heard and ruled in their favour, today’s election would have not proceeded.
But President Uhuru Kenyatta, Attorney General Githu Muigai and the IEBC had filed grounds of objections, each giving their separates reasons as to why the suit is bad in law and incompetent.
The AG said the orders sought cannot be issued as the suit is inappropriate in light of the public interest.
“The petition is preemptive and is also pegged on conjecture, apprehension and misapprehension of factual circumstances that have not arisen regarding preparedness of the IEBC with regard to the manner of the poll," he said.
"The orders sought are unmerited and if granted would be inimical to the public interest and the rule of law," he added.
President Uhuru Kenyatta accused the petitioners of misleading court that stopping election would safe the country money.
The three petitioners are guilty of gross and unreasonable delay and the orders sought would cause grievous harm to the public, he said.
Through lawyer Fred Ngatia, Uhuru said there is no evidence in support of the petition to prove the election will not be credible, hence the suit is an abuse of the court process.
“The foundation of the petition offends the legal principle that a litigant cannot found a cause of action on his own neither wrong doing nor can a court of law sanction or reward wrongdoing,” Jubilee’s David Chirchir added in an affidavit.
In addition, Ngatia said the court has no jurisdiction to determine whether IEBC will conduct credible elections in accordance with the constitution and law on the basis of apprehension and suspicion.
“The court is being asked to review its own decision by substituting the election deadline of 60 days with another date”.
IEBC on its part said the petition is incompetent, speculative.
The commission said it has demonstrated the steps it has taken to adhere to the orders given by the Supreme Court when it nullified the last elections.
“We are yet to conduct elections and it would be premature and speculative to allege that the commission cannot and is not bale to deliver credible elections,” Consolata Nkatha , the commission vice chairperson stated in an affidavit.
“The petition is misconceived, an abuse of the court process and does not disclose any violations of rights capable of protection by the court”.
