UHURU’s repeat election landslide win is by all means invalid and illegitimate - City Lawyer.

..presidential elections. Personal interests Ten days to the poll, Commissioner Roselyn Akombe resigned after fleeing to the US. In her words, “we need just a few men and women of integrity to stand and say that we cannot proceed with the election on October 26 as currently planned.” 

A day later, Chebukati lamented in frustration that “it is difficult to guarantee free and fair and credible election.” He demanded the resignation of implicated commissioners and the secretariat claiming that “I would rather bow out with my name intact and my head lifted high than to be part of a process where personal interests dwarf the interest of the nation.”

In a later address, Chebukati changed tune, accusing Akombe of speaking from the comfort of a “foreigner”. His assurances that the position had changed for the better was unconvincing. A Supreme Court petition a day to the poll to stop the election was frustrated by lack of quorum.

Who occasioned and benefited from the non-coincidental quorum hitch? Court of Appeal Judges Githinji, Koome and Sichale surfaced late in the night on a ‘public holiday’, to stay a High Court decision made the same day, declaring the appointment of returning officers unconstitutional. In the morning, the Court was on ‘holiday’ and could not hear an appeal by ODM against the inclusion of Aukot on the ballot.

Who summoned and directed the three judges to act and decide as they did? A valid presidential election must be conducted in accordance with the Constitution. No valid election took place on October 26 if the 2013 Supreme Court decision is applied. The election was not conducted in 290 constituencies in any event.

Elections Act Section 55B relied upon to put off elections in opposition strongholds cannot override Article 138 (2) of the Constitution on this issue. Even if Kenyatta receives more than half of votes cast in the election and 25 per cent of votes in half of 47 counties as expected, the poll is still invalid.

The possibility of the Supreme Court being frustrated from hearing another petition confirms that a legal solution to the problem is far from near. Raila’s transformation of NASA to a resistance movement adds to the uncertainty. It remains to be seen whether CJ Maraga will preside over another petition or witness the swearing-in of Kenyatta and how the same will be received by the opposition and the international community.

By Nelson Havi (Advocate of the High Court)

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  1. This young novice of a learned friend has said so much stuff that is totally irrelevant and just a recycled political narrative his political coalition crafted, polished over time and packaged it for distribution to the political class and if course various learned friends. It must told that courts can only deal with facts from evidence and the applicable laws. So dancing around the law in a political spin about legitimacy of the election outcome is not a legal issue. No court of law or well trained and experienced lawyer can rely on a political ground made made on sea sand as evidence to secure a nullification of the election. So let no body loose sleep over these busy bodies and all the drumming they are sounding.

  2. I agree with anon. 08:27. In that narrative a lone statement stands out and I quote:(NASA's irreducible minimums were not met). Our constitution does not have room or provision for anyone to dictate to state institution on how they will operate or do business. If Raila thinks he can order IEBC around, he is in for a shock. If Raila thinks he owns Kenya, he should think twice of not thrice. Tell the old geezer to organize himself and head to the courts as that is the only option left so far.

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