For the first time in the history of this country, the Supreme Court that was created by the new constitution is handling the petitions arising from the disputed March 4 presidential poll.
Being highest court in the land, the court has the exclusive original jurisdiction to hear, determine and deliver the ruling within fourteen days. This is as stipulated in Articles 163 [3] and 140 [1] [2] [3] of the constitution that was promulgated in 2010.
Though a full bench of the Supreme Court is comprised of seven judges, the petition will be heard by the six judges. This is because Justice Kaplana Rawal who was endorsed by the Judicial Service Commission [JSC] to replace Ms Nancy Barasa is yet to be confirmed by parliament. The quorum is however constituted by the five judges.
Already the president-elect Uhuru Kenyatta and prime minister Raila Odinga, who are main players in the dispute, have reassured the country that they will accept the verdict of court. This is a move in right direction and we hope the duo will keep their word.
As the country awaits the outcome of the case, one thing is very clear, Kenyans are yet to grasp and internalize the relevant provisions of constitution. They have yet to understand the rules developed to direct and guide the Supreme Court’s judges in undertaking this crucial mandate and that is why I feel obliged to share with my fellow Kenyans the steps being followed by the court.
First, the petitions are filed before the registrar of the court and that must be done within seven days after the declaration of final tally of the presidential results. The petitioner [s] must fulfill certain pre conditions before their petitions are accepted. Each should avail and furnish the court with documentary evidence and other related materials in addition to a deposit Ksh 1 million. Indeed, this was the main reason that delayed the CORD petition which was filed on the last day of submissions.
After filing, the petitioner must serve the respondents with court papers electronically within two hours and must take a maximum of three days to serve them physically. In the event of having difficulties to reach and access the respondents, the petitioner is allowed to place the legal Notice in the print media with a nationwide circulation. The respondents on the other hand are required to confirm to the court that they have received the papers within three days.
In the meantime, the lawyers representing the parties involved must file and ensure the sworn affidavits of their clients have reached the judges. Besides they should include the names of expert witnesses, if any.
Notably, the Chief Justice is also required to convene a session with all the parties during which he would make an official communication that the Judiciary receive the petitions and to assure of its preparedness to hear and determine the cases in accordance to the constitution and law.
On the ninth day after the filing of petition, the judiciary will convene a pre trial conference which will be attended by the judges and lawyers. In this meeting, the lawyers will iron out any issues arising and agree on how they want the courtroom hearing conducted which will take two days starting on the tenth day.
Joseph M. Ndonga comments on topical Issues
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