The role of the Supreme Court of Kenya in Election Disputes

The Jurisdiction of the Supreme Court of Kenya in determining Presidential Elections disputes

Article 81 and 86 lay bare the Constitutional threshold for elections in Kenya. In summary, these Constitutional provisions require that elections be simple, accurate, verifiable, secure, accountable and transparent.

Once elections are held and the Independent Electoral and Boundaries Commission declares the president, persons contending the validity of elections for office of the president  are  allowed to do so within the precincts the  law. Article 163 0f the Constitution of Kenya establishes and bestows upon The Supreme Court of Kenya exclusive and original jurisdiction to hear and determine disputes relating to the elections of the office of the president. This means that the Supreme Court of Kenya has the power to adjudicate on presidential election disputes to the exclusion of all other courts. Secondly, the Supreme Court can hear and entertain such petitions for the first time. To this end, the Supreme Court (Presidential Election Petition) Rules, 2017 have been promulgated to ensure the smooth and expeditious disposal of disputes relating to presidential elections.

Composition of the Supreme Court

The Supreme Court is Comprised of Seven Judges. The current composition of the sitting Judges is:

  • Hon. David Maraga - Chief Justice and President of the Court
  • Hon. Lady Justice Philomena Mbete Mwilu - Deputy Chief Justice and Vice President of the Court
  • Hon. Mr. Justice Mohamed Khadhar Ibrahim
  • Hon. Justice (Prof.) Jackton Boma Ojwang
  • Hon. Justice (Dr.) Smokin Wanjala
  • Hon. Lady Justice Njoki Susanna Ndung'u
  • Hon. Justice Isaac Lenaola

The Court is however duly constituted for purposes of its proceedings when it has a composition of five judges.

Timelines for Presidential Election Petitions

Article 140(2) of the Constitution and rule 6 of the Supreme Court (Presidential Election Petition) Rules, 2017-SPR- provide a timeframe within which petitions to the Supreme Court may be filed. Such should be within seven days after the declaration of the results of the presidential elections.

The petitioner is then required to serve the respondent within two days of filing the Petition (Rule 10 SPR).  The respondent should then respond to the Petition within four days upon receipt of service (Rule 11 SPR). Any interlocutory Applications arising are to be filed within one day (Rule 17 SPR).  The pre-trial conference then follows eight days after filing the Petition (Rule 14 SPR). A pretrial conference is a meeting of the parties to a case conducted prior to trial and in this case, it is aimed at framing the issues and consolidating the petitions if any. The Hearing of the Petition then follows the pre-trial conference, and proceeds daily without interruption unless the Court decides otherwise. Presidential petitions are limited to fourteen days of hearing and determination,  from the date when the final petition is filed. 

Options for the Supreme Court

Upon hearing a petition, the Supreme Court has the following options:

  1. May invalidate IEBC’s declaration;
  2. May validate the victory of the president-elect; or
  3. May make any other order that it may deem fit and just in the circumstances.

The decision of the Supreme Court is final. There is no higher court that can reverse a decision that has been determined by the Court.

In the event that the Supreme Court makes a verdict in favour of the Petitioner and invalidates the presidential election results, Article 140 (3)(c) calls for a fresh election (re-run), which is  to be held within sixty days. Here, all the candidates who had been contesting for the office of the president shall take part in another election.

Melissa Lukulu is an Advocate for the EACLJ

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