- IEBC and President Kenyatta have dismissed the petitioners’ argument that Mr Jirongo’s inclusion was unlawful and irregular.
- The other issue for the judges to determine, it is expected, will be the petitioners’ claims of violence and intimidation.
- President Kenyatta’s lawyer Fred Ngatia urged the judges to look at the common good of the country.
When the six Supreme Court judges emerge on Monday to deliver their judgment on the presidential election petition, they will be expected to give answers to at least five key constitutional and political contentions, which formed the basis of the case.
Monday is the constitutional deadline for the court to deliver its judgment on the petition by civil society activists Njonjo Mue and Khelef Khalifa, and a second one by former Kilome MP Harun Mwau, both of which are seeking to have the October 26 rerun nullified.
"We will deliver judgment on November 20. The exact time, you will be informed by the registrar," Chief Justice David Maraga said as he adjourned the proceedings on Thursday.
The petition was also heard by Deputy Chief Justice Philomena Mwilu, judges Smokin Wanjala, Jackton Ojwang’, Njoki Ndung’u and Isaac Lenaola.
Justice Mohamed Ibrahim remains unwell and has not returned from overseas where he was taken during the hearing of the successful election petition by Nasa.
The first contention, and which the six judges will have to pronounce themselves on, is whether there was a constitutional requirement allowing the Independent Electoral and Boundaries Commission (IEBC) to conduct fresh nominations before the repeat poll.
According to the petitioners, given that this was a fresh election and not a continuation of the August 8 election, IEBC was required by law to conduct fresh nominations.
In their petition, Mr Mue and Mr Khalifa contend that the IEBC "did not conduct any nominations of presidential candidates in accordance with the Constitution and the law; the third respondent (President Uhuru Kenyatta) was not validly, procedurally and/or lawfully nominated as a presidential candidate".
"The centrality of nomination of candidates in the election process or cycles is underscored by the fact that under Article 88 (4) (k) of the Constitution, it is one of the key responsibilities of the first respondent (IEBC).
"Without conducting a nomination, there was no basis for the fresh election on October 26, 2017, because the process for the election had not been initiated.
"The second respondent was operating outside the law and, therefore, the election was rendered invalid ab initio (from the start)," they argued.
The issue of nomination was also the main argument of Mr Mwau’s petition, with his lawyers saying nominations are specific to elections and that the nomination certificate that was issued to candidates before the August 8 General expired with that election.
"Such nominations, being expired and spent, were and are not valid for the election held on October 26, 2017 or any other election," Mr Mwau said in the petition.
During the proceedings, a lawyer for Mr Mwau, Macmillan Ouma, went further to protest that President Kenyatta needed a nomination certificate before the August 8 election even though he had participated in and been issued with a similar certificate before the March 2013 election.
His conclusion was that nomination certificates are specific to elections and could not be used in any other election other than the one they were issued for.
On the other side, lawyers for President Kenyatta and those of IEBC held that there was no need for the latter to conduct fresh nominations after the nullification of the August 8 presidential election.
IEBC stated that the fresh presidential election was unique "and for which there was no requirement for fresh nominations".
Similarly, in his response to the question of nominations, President Kenyatta said "there is not a single constitutional or statutory provision, which requires that fresh nominations be conducted during a fresh election under Article 140 (3) of the Constitution.
"On the contrary, there are constitutional, statutory and judicial pronouncements that leave no shadow of doubt that nominations are not required during a fresh presidential election."
Closely related to the issue of nominations is whether Mr Cyrus Jirongo of United Democratic Party was properly nominated and gazetted as required by law.
Although IEBC had initially left out Mr Jirongo’s name from the list of candidates in the fresh presidential election, the decision was reversed on October 24 through Special Gazette Notice No 10562.