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Kenya Repeat Polls Petition Hits Snag over Quorum

Supreme Court

Kenyans will go to the polls on Thursday in fresh presidential polls following the failure by the Supreme Court to hear a petition seeking to stop the polls due to lack of quorum. Early this week, three Kenyan voters led by Khelef Khalifa, the Director of Muslims for Human Rights petitions the Supreme Court to suspend the repeat polls, saying the Independent Electoral and Boundaries Commission-IEBC was unable to conduct credible polls.

Despite convening, the Chief Justice David Maraga, said they couldn’t proceed with the matter because of quorum. “Regrettably and with due apology, this matter can’t proceed to hearing this morning for a number of reasons,” he said. Only two judge of the seven panel of the Supreme Court judges Maraga himself and Justice Isaac Lenaola were available.

“As the two of us cannot form a quorum, this matter cannot be heard this morning,” he said. Justice Maraga said the Deputy Chief Justice, Philomena Mwilu couldn’t it make it to the court because of an attack on her bodyguard on Tuesday night. “You are fully aware about the events of last night, I think Justice Mwilu is traumatized,” he said. Unidentified gunmen ambushed and shot Mwilu’s bodyguard, Constable Titus Musyoka opposite Impala Club along Ngong Road in Nairobi minutes after dropping his boss.

Justice Maraga also revealed that Justice Mohammed Ibrahim was ill and out of the country. “Justice Smokin Wanjala couldn’t make it to court; Justice Jackton Boma Ojwang is out of the country while Justice Njoki Ndung’u was outside Nairobi but has managed to catch a flight to return for the hearing,” he said.

He adjourned the matter to another date that will be issued on notice. In his affidavit, President, Uhuru Kenyatta asked court to dismiss, arguing that the petitioners didn’t present credible evidence showing that the elections will not be credible. Grievous harm would be done once the polls are cancelled,” he pleaded with court. In an earlier ruling, Justice Isaac Lenaola faulted IEBC for gazetting Returning Officers in disregard of the law since it didn’t consult presidential candidates as provided for. He however, said he couldn’t give any orders in the interest of the national good.

Paul Muite, the IEBC lead lawyer, says the development means Kenyans will go to the polls on Thursday as planned. “Prepare to go to the polls,” he told journalists when asked what the court decision means. He explained that the contested issues will be resolved after the polls. “The Supreme Court ordered that fresh elections be held within 90 days from the nullification of the previous polls. That is what IEBC is doing. The remaining issues will be handled,” he said.

But James Orengo, a member of the National Alliance Super Alliance-NASA, said what happened in court was a clear sign that IEBC is operating without the input of the chairman. “Chibukati has become a passenger in the commission,” he noted. Adding that, “I think the lack of quorum isn’t by coincidence or accident. “The attempt on the body guard of the Deputy Chief Justice was an attempt on her life. All in all, there is an attempt to undermine independent institutions of government like IEBC,” he said.

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