The 2017 case in which the Court of Appeal overturned the High Court ruling that found the appointment of IEBC returning officers and their deputies illegal has returned to haunt Chief Justice-designate Martha Koome.
Mr Khelef Khalifa, a human rights activist and the board chair of Muslims for Human Rights (Muhuri) has petitioned the National Assembly to reject the nomination of the Court of Appeal judge, arguing she is not fit to serve in that capacity.
After interviewing 10 candidates in its search for a Chief Justice to succeed Mr David Maraga, the Judicial Service Commission (JSC) unanimously nominated Justice Koome.
The JSC forwarded her name to President Uhuru Kenyatta who then submitted it to the National Assembly for vetting.
Parliamentarians are currently receiving memoranda on the nomination, information which they will factor into their decision on Justice Koome's possible appointment.
The case had been filed by Mr Khalifa who had argued that the electoral commission violated the provisions of regulations 3 of the Elections (General) regulations, 2012. The judgment was delivered on October 25, 2017, a day to the polling day for the repeat presidential election.
On that day, which Interior CS Fred Matiang’i had declared a public holiday, Mr Khalifa noted that the Court of Appeal and its registries remained closed. He says that only courts that had the permission of the Chief Justice were sitting.
Despite it being a public holiday with no functional registries, then then court of appeal President Paul Kihara Kariuki, who is now the Attorney-General, set up a three judge bench that suspended Justice Odunga’s orders.
The bench comprised Justice Koome, Justice Fatuma Sichale and Erastus Githinji.
The matter came up during Justice’s Koome interview but she defended herself saying that they sat to hear the case at night to avert a constitutional crisis.
She told the JSC that refusing to sit when the president of the court had set up the bench would have amounted to insubordination.
But the Muhuri board chair has raised several arguments based on this turn of events to support his belief that Ms Koome is not fit for the CJ position.
“I have a genuine fear and concern that Ms Koome will be subservient to the Executive and other forces if confirmed as the next CJ,” he says.
“By lying to the commission, Justice Koome showed disposition to cheat in furtherance of other motives and to advance a selfish interest at the expense of the rule of law,” he added.
The petitioner says the public holiday rendered the Court of Appeal non-functional because there was no duty judge to certify the IEBC case as urgent and allow the matter to be placed before the bench.
He also argues that it was not reasonable in the circumstances at that time for the IEBC to file an application for stay under certificate of urgency which was heard on the same day.
“If the IEBC appealed, they did it illegally, opaquely and in a conspiratorial way given the court of appeal registry remained closed,” he says in the petition to the National Assembly.
He adds: “Neither I nor my counsel were notified of the appeal, stay or procedure that would have enabled proper and fair justice to prevail.”
Mr Khalifa further argues that all the three judges were not based in Nairobi and that it is impossible that the matter was heard in the Supreme Court in Nairobi.
Justice Koome was based in Malindi, Justice Sichale in Nyeri and Justice Githinji in Kisumu.
The petitioner notes that in spite of many requests, the JSC has failed to prove that the three judges converged in Nairobi to hear the matter.
He says he has never been given the name of the duty judge who certified the appeal as urgent or the proceedings certifying the matter as urgent. He has requested the CCTV clips of the Court of Appeal premises between 2pm and 6pm on October 25, 2017.
He also requested the three judges’ drivers’ daily log and trip sheet for the same day but the JSC declined to give the information.
Mr Khalifa, however, argues that Justice Koome’s action was in bad faith and a scheme to defeat justice.
