The Supreme Court declared the election of Uhuru Muigai Kenyatta as president on 8th August invalid and ordered that a fresh presidential election be held within 60.
In a majority 4-2 judgement, the Supreme Court ruled on Friday that the Independent Electoral and Boundaries Commission and the commission’s chairman failed to conduct the presidential election in a manner consistent with the constitution.
The Supreme Court is made of seven judges but one of them, Justice Mohammed Ibrahim, was taken ill on Tuesday and is in hospital. Chief Justice David Maraga said on Friday that Justice Ibrahim is “doing well” and will be in hospital for a few days. Chief Justice Maraga did not say what is ailing Justice Ibrahim.
Chief Justice Maraga said that given the volume of documents filed in court that the judges needed to read through, they were not able to write a detailed judgement on the petition challenging Kenyatta’s election within the constitutionally required deadline.
The constitution gives the Supreme Court to receive, hear and determine a presidential election petition within 14 days of a result being declared. IEBC Chairman Wafula Chebukati declared Kenyatta the winner of the presidential election on 11th August. Chebukati made the declaration because under the law the IEBC chairperson is the returning officer for the presidential election.
Chief Justice Maraga said because of the tight constitutional deadlines, the judges were only able to present a summary of their judgement. He said the majority judgement was based on Articles 10 and 38 of the constitution and provisions in Sections 39, 44 and 83 of the Elections Act.
“An election is not an event. It is a process from the beginning to the end. We will, I believe, be able to demonstrate why we reached our conclusions,” said the Chief Justice as a way of indicating the reasoning of the majority.
Other than the Chief Justice, the other judges who made the majority decision are Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola.
Justices Jackton Ojwang and Njoki Ndungu dissented. They read summaries of their dissenting opinions.
“By law, hardly any conclusive evidence has been adduced in this regard to justify the invalidation of the election,” said Justice Ojwang.
“It is clear to me beyond peradventure that there is not an iota of merit in invalidating the expression of the Kenyan people’s will,” he concluded.
Justice Ndungu said the polling station is “at the heart of the election” and she said there were four questions that needed to be answered in determining the presidential election petition.
One was whether there was a problem with the voters’ register. Another was whether voters could identify the polling station they were to vote in. The third was whether voters could cast their votes and the fourth was whether those votes were counted and properly recorded.
“The petitioners did not provide any material evidence to the standard required,” to back their allegations against Kenyatta’s election, said Justice Ndungu, explaining why she upheld the election.