The Supreme Court has thrown out a petition seeking to block the swearing-in of president-elect William Ruto.
The petition filed by 11 activists challenged the suitability of Dr Ruto and his deputy, Rigathi Gachagua, to hold office over alleged integrity issues.
The apex court found it has no authority to address the issues raised by the activists as they should have filed the case at the High Court.
The activists, through lawyer Kibe Mungai, wanted the Supreme Court to stop the swearing-in of Dr Ruto and Mr Gachagua pending determination of the suit. They wanted the Supreme Court to interpret application of ethics and integrity law to persons seeking elective public offices.
They argued that Mr Gachagua was unsuitable to hold public office and the decision of Dr Ruto to nominate him as running-mate was invalid. Consequently, that their participation in the presidential polls was illegal and their election was unconstitutional.
But the Supreme Court ruled that the activists should have filed the case at the High Court. It also questioned why the activists filed the case late.
The seven judge-bench led by Chief Justice Martha Koome threw out the case following an objection by Dr Ruto, Mr Gachagua and United Democratic Alliance (UDA) party together with the elections agency and its chairperson Wafula Chebukati.
“The applicants are inviting the court to assume jurisdiction outside the confines of Article 163 (3) as read with Article 140 (1) of the constitution. They are inviting the court to unconstitutionally expand its jurisdiction. To wait until a day to the General Elections, before seeking the orders of such magnitude, casts the petitioners in a cynical scheme of abuse of the processes of this Court,” said the judges.
In their objections, Dr Ruto and UDA party argued that the Supreme Court cannot handle such a case at first instance.
“The petition offends the principle of exhaustion as regards avenues of recourse available pursuant to Article 88 (4) (d) and (e) of the Constitution. It fails the test of justiciability and ripeness and offends the principle of sub-judice as there is another Constitutional petition pending before the High Court,” UDA's secretary general Veronica Maina told the court.
They added that the suit was “incompetent and incurably defective both in form and in substance and was therefore untenable”.
“The petition is an abuse of the court process and it amounts to forum shopping in that the petitioners have filed a similar petition in the High court Constitutional division where they are seeking similar orders and based on the same set of facts,” lawyer Elias Mutuma for UDA, Dr Ruto and Mr Gachagua said.
He argued that the activists prematurely and wrongly invoked the authority of the Supreme Court to hear and determine constitutional matters.
“This court can only sit as a court of first instance in such a matter pursuant to the provisions of Article 140 of the Constitution (Questions as to validity of presidential election). This matter offends the doctrine of exhaustion as regards the avenues of recourse available in the Constitution, the Elections Act and IEBC's rules of procedure on settlement of disputes,” said Mr Mutuma.
Since the gist of the suit is eligibility of Mr Gachagua due to a recent High Court judgment that allowed the State to seize his Sh202 million alleged dirty cash and an ongoing graft case, Mr Mutuma said the cases are still pending in court.
“There exists no basis for the Court to issue the orders (sought) since the criminal matters relied upon in support of the Application are still pending in court,” said Mr Mutuma. “The issue as clearly addressed under Article 99 (3) of the Constitution of Kenya, is that: “A person is not disqualified under clause (2) unless all possibility of Appeal or review of the relevant sentence or decision has been exhausted"," he stated.
According to the lawyer, the activists have failed to adduce substantial and credible evidence in support of their claims to justify the incompetency and unsuitability of Mr Gachagua and as a result led the petition falls "on its own sword".
He added that the suit is a pre-election dispute and has been overtaken by events since elections already took place on August 9, 2022 and are only awaiting conclusion of the tallying process, announcement of the results and gazettement of the winning candidates.
"The instant suit is thus at this juncture prematurely instituted before this court as an election dispute but clothed as a pre-election dispute. We submit that the petitioners ought to hold their horses and move this court appropriately as a court of first instance in such a matter as provided for by the provisions of Article 140 of the Constitution," said Mr Mutuma.
IEBC and Mr Chebukati on their part argued that the activists were in effect urging the Supreme court to usurp the IEBC’s independence, authority and mandate under the Constitution, the Elections Act (2011) and the Elections (General) Regulations (2012) to nominate, validate or invalidate the nomination of candidates in a general election.
"The Petition and the application should be dismissed as they seek this court to interfere and direct the IEBC on how to carry out its mandate under the constitution and the Elections Act. The law grants the IEBC authority to resolve disputes relating to or arising from nominations of candidates in the general elections," said Mr Chebukati and the Commission.
They explained that the activists should have filed their complaints against the nomination of Mr Gachagua at the IEBC Dispute Resolution Committee.
If aggrieved by the Committee's decision, they should have moved to the High Court by way of a judicial review and not a petition to the Supreme Court.
If aggrieved by the Committee's decision, they should have moved to the High Court by way of a judicial review and not a petition to the Supreme Court.
