In Summary
  • Among the cases that were filed in court, and which turned out to be game changers, is a petition filed by activists Maina Kiai, Khelef Khalifa and Tirop Kitur.

  • So far, courts have cleared more than 75 cases out of which 24 election petitions have been dismissed.

  • Determination of election petitions must be done within six months.

Last year was the busiest period for the Judiciary, with judges and magistrates handling election petition cases which piled up in the courts.

Outside the normal criminal, commercial, civil and industrial disputes, 340 election petitions arising from the August 8 poll were filed, resulting in the highest number of such cases ever to be filed.

The Supreme Court, in 2017, presided over three presidential petitions, a sign of the burden the courts are carrying.

The pileup of election-related cases started soon after political parties concluded their primaries in April with a total of 270 cases related to the primaries being filed at the Political Parties Dispute Resolution Tribunal.

By May 20, the Political Parties Tribunal had cleared  180 cases, some of which were appealed.

Then came cases filed touching on the August 8 General Election. From procurement of the kits to be used during the elections, to the process of voting and the personnel, about 50 petitions were filed at the High Court. Some of these cases ended up in the Supreme Court.

PAY COSTS

The cases were so many that Attorney-General Githu Muigai pleaded with Court of Appeal Judges to condemn advocates to pay costs to other lawyers, as a punishment for filing frivolous cases. Prof Muigai told the court that since the announcement of the August 8 General Election, 35 cases had been filed with the aim of stopping the election.

In Prof Muigai’s view, punishing a party would stop the habit of filing the cases he considered a waste of time, arguing that his office is “struggling” with new cases in various courts filed by “the same group of litigants”.

“I would like the court to send a clear message that an election is an important national issue and should not be subject to frivolous and self-promoting litigation,” he said.

Lawyer Nelson Havi objected to the AG’s push. “It is an oppressive request and not founded in law. Advocates take instructions on behalf of a client.”

FILED

Among the cases that were filed in court, and which turned out to be game changers, is a petition filed by activists Maina Kiai, Khelef Khalifa and Tirop Kitur. The three successfully argued that the Independent Electoral and Boundaries Commission (IEBC) could not change results at the national tallying centre.

IEBC Chairman Wafula Chebukati had, at some point, to seek clarification from the judges of the Supreme Court claiming there was a conflict between their directive nullifying the August 8 presidential election and the Kiai case.

But, after hearing Mr Chebukati, the judges reiterated that the commission could not alter or amend results as announced from the polling stations.

They said the IEBC chairman could only tally and verify the results to confirm whether the winning candidate has met the 50 pc plus one vote threshold and garnered at least 25 per cent in at least 24 counties as required by Article 138(4) of the constitution.

DISCREPANCIES

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