Monday 25 March 2013

[wanabidii] KTN Prime: Supreme Court battle of titans


 
 
-------------------Forwarded by Judy Miriga--------------------
 
 
 
 
 
KTN Prime: Supreme Court battle of titans
Added on March 25, 2013
It was always going to be a day of high drama and it was, as the country's top court set the stage for a land mark petition that could redefine the country's electoral system. The Supreme Court has set the ground rules for the hearing of a petition challenging the declaration of Uhuru Kenyatta as the winner of the march 4th election
Last Modified: 25 Mar 2013 22:51
Published on Mar 25, 2013

Watch KTN Streaming LIVE from Kenya 24/7 on http://www.ktnkenya.tv
It was always going to be a day of high drama and it was, as the country's top court set the stage for a land mark petition that could redefine the country's electoral system. The Supreme Court has set the ground rules for the hearing of a petition challenging the declaration of Uhuru Kenyatta as the winner of the march 4th election

 
 
 
 
 
 
Landmark election petition hearing begins in Nairobi
Published on Mar 25, 2013

http://www.ntv.co.ke
The Supreme Court has ruled that repeat tallying for the presidential votes will be done on 22 polling stations around the country on Tuesday morning. The stations are contested and expressly annexed by CORD in its petition challenging the declaration of Uhuru Kenyatta as president. The court is also expected to rule of the fresh 900 page affidavit filed by the petitioner and whether the IEBC will produce the electronic logs from its main server. NTVs Ken Mijungu was at the Supreme Court and reports on the battle of brains.

 
 
 
 
 
IEBC Frustrating Our Petition Efforts, CORD
Published on Mar 11, 2013

The Coalition for Reforms and Democracy, CORD, claims that the Independent Electoral and Boundaries Commission is frustrating its efforts to get documents crucial to its intended petition challenging the just concluded presidential poll outcome. However, the coalition's legal team is confident that IEBC's reluctance to provide that document does not weaken its case but only serves to prove that the commission is out to hide the truth.

fitahnz 2 weeks ago
The biggest election fraud in the history of the world took place in Kenya. The deception by IEBC should never be accepted! Kenyans of good will wait for the supreme court's verdict and if the honorable Mutungas arm is bent, don't be scared to demonstrate or gather in front of statehouse to demand real justice! Don't be scared to become martyrs of real democracy and freedom! 700000 votes were rigged! We are the majority and at anytime don't be scared! Its them who are worried if we stand up!
 
 
 
 
 
Supreme Court to rule on AG, LSK enjoinment in petition


Monday, March 25, 2013 - 00:00 -- BY EUGENE OKUMU

The Supreme Court is set to rule on whether to allow the applications of the Attorney General Githu Muigai and the Law Society of Kenya to be enjoined in the Cord petition, challenging the election of Uhuru Kenyatta, as Amicus Curiae, Friends of the Court.

In the status conference hearing convened this morning at the Supreme Court chambers, the judges heard from Cord and Africog, who are petitioners in the case, raise their objections to allowing the AG and the LSK to be enjoined in the petition.

The AG and the Law Society of Kenya had applied to be enjoined on grounds of clarifying matters of law that would be challenging to either parties, whether the petitioners, the respondents, or the judges.

The AG argued that he would be appearing as a non-partisan contributor to the proceedings, and would only be limited to the contentious constitutional issues. He also added that his contribution would however be made at the discretion of the bench.

Senior counsel George Oraro who is representing Raila Odinga in the petition however contradicted the AG's submission saying that in instances where the Amicus Curiae has been invoked, it has been at the request of the court.

"The AG was not invited, but rather he applied to be enjoined," said Oraro who further added that Muigai had misinterpreted the circumstances under which his contributions may be welcome.

Oraro added that in order for Muigai's application to be considered he would have to submit the nature of his research and whatever legal difficulties that the court was facing.

All the respondents, Isaack Hassan, the Independent Electoral and Boundaries Commission (IEBC) and the Jubilee duo of Uhuru Kenyatta and William Ruto, through their lawyers raised no objection on the enjoinment of Mugai to the case.

All the petitioners and respondents however objected to the LSK joining the case citing that the body had stated that it was conducting an audit of the elections which essentially meant it would be joining the case with a bias beforehand. The court will rule on whether the AG and the LSK can join the petition. The session will resume this afternoon at 3pm.

Why The High Court Refused To Stop Tallying Of Presidential Votes

Wednesday, March 13, 2013 - 00:00 -- BY EMMA KINYA MWOBOBIA

The African Centre for Open Governance (AFRICOG) v Ahmed Issack Hassan & Another
High Court of Kenya at Nairobi
Constitutional and Human Rights Division
Petition No. 152 of 2013
I. Lenaola, D.S. Majanja, W.Korir JJ.
March 8, 2013
The petitioner, a NGO working in the area of democracy, transparency, and open governance in Kenya filed a petition challenging the manual tallying of the presidential ballots without verification with the actual constituency based results in the relevant submitted forms. The petitioner inter-alia sought orders for the High Court to stop the manual tallying of the presidential ballots and in the event that the respondents will have announced the presidential results by the hearing of the application, an order restraining the respondents from gazetting the results until hearing and determination of the petition herein.
The jurisdiction of the High Court is provided for under Article 165(3),(5) of the Constitution of Kenya, 2010, and further limited to various instances including matters reserved for the exclusive jurisdiction of the Supreme Court under the constitution. The constitution had also vested exclusive original jurisdiction to the Supreme Court to hear and determine disputes relating to elections to the office of the President arising under Article 140 which provided for the manner in which questions as to the validity of presidential elections shall be handled.
Issue:
Whether the High Court had jurisdiction to stop the manual tallying of the presidential ballots.
Held:
1. Jurisdiction was everything and without it, the court had no power to make one step. Where a court had no jurisdiction there would have been no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it was without jurisdiction.
2. The import of Article 165(3) and Article 140 of the constitution was that where jurisdiction was exclusively donated by the constitution to the Supreme Court, the High Court could not have invoked its jurisdiction under Article 165(3)(d)(ii) to enquire whether anything done under the authority of the constitution was inconsistent with or in contravention of the Constitution.
3. According to the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion Application No. 2 of 2012 (2012) eKLR, there was no reason for the court to have presumed that the framers of the constitution had intended that the Supreme Court should have exercised original jurisdiction only in respect of a specific element, namely, disputes arising after the election while excluding those disputes which might have arisen during the conduct of the election. The High Court has therefore no jurisdiction over any matter in which the constitution had reserved for the exclusive jurisdiction of the Supreme Court.
4. The petition contained matters that involved the process leading to the declaration of a successful presidential candidate. The presidential election was not a single event but a process that flowed from nominations to election petitions subsequent to the declaration of presidential election results. The High Court could therefore not have appropriated jurisdiction to entertain the petition however urgent or important it may have been to the parties or the public.
5. The issues raised in the petition however, were not idle and should therefore be pursued in the right forum.
 
 
 
 

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