Last year was the busiest period for the Judiciary, with judges and magistrates handling election petition cases which piled up in the courts.
Outside the normal criminal, commercial, civil and industrial disputes, 340 election petitions arising from the August 8 poll were filed, resulting in the highest number of such cases ever to be filed.
The Supreme Court, in 2017, presided over three presidential petitions, a sign of the burden the courts are carrying.
The pileup of election-related cases started soon after political parties concluded their primaries in April with a total of 270 cases related to the primaries being filed at the Political Parties Dispute Resolution Tribunal.
By May 20, the Political Parties Tribunal had cleared 180 cases, some of which were appealed.
Then came cases filed touching on the August 8 General Election. From procurement of the kits to be used during the elections, to the process of voting and the personnel, about 50 petitions were filed at the High Court. Some of these cases ended up in the Supreme Court.
The cases were so many that Attorney-General Githu Muigai pleaded with Court of Appeal Judges to condemn advocates to pay costs to other lawyers, as a punishment for filing frivolous cases. Prof Muigai told the court that since the announcement of the August 8 General Election, 35 cases had been filed with the aim of stopping the election.
In Prof Muigai’s view, punishing a party would stop the habit of filing the cases he considered a waste of time, arguing that his office is “struggling” with new cases in various courts filed by “the same group of litigants”.
“I would like the court to send a clear message that an election is an important national issue and should not be subject to frivolous and self-promoting litigation,” he said.
Lawyer Nelson Havi objected to the AG’s push. “It is an oppressive request and not founded in law. Advocates take instructions on behalf of a client.”
Among the cases that were filed in court, and which turned out to be game changers, is a petition filed by activists Maina Kiai, Khelef Khalifa and Tirop Kitur. The three successfully argued that the Independent Electoral and Boundaries Commission (IEBC) could not change results at the national tallying centre.
IEBC Chairman Wafula Chebukati had, at some point, to seek clarification from the judges of the Supreme Court claiming there was a conflict between their directive nullifying the August 8 presidential election and the Kiai case.
But, after hearing Mr Chebukati, the judges reiterated that the commission could not alter or amend results as announced from the polling stations.
They said the IEBC chairman could only tally and verify the results to confirm whether the winning candidate has met the 50 pc plus one vote threshold and garnered at least 25 per cent in at least 24 counties as required by Article 138(4) of the constitution.
The court said that if the national returning officer notices discrepancies, he should announce the results and leave the matter to the court.
“It is, therefore, the duty of Mr Chebukati to bring to the attention of the public any inaccuracies discovered by the verification of Forms 34A and Forms 34B even as he declares the results as generated from Forms 34B to generate Form 34C.”
After clearing the pre-election cases, courts were flooded with election petitions across the country. In total, 338 election petitions were filed with 34 of them challenging the elections of governors. Some 98 petitions were filed challenging the election of MPs while the election of 15 senators and 12 woman representatives were challenged. For members of the County Assemblies, some 129 cases were filed while 50 cases were brought against party nomination lists.
So far, courts have cleared more than 75 cases out of which 24 election petitions have been dismissed.
Six were withdrawn, including that of former Meru Governor Peter Munya, who had challenged the election of Mr Kiraitu Murungi, and one challenging the election of Narok Governor Samuel Tunai. The magistrates’ courts have cleared 45 cases against MCAs and party nomination lists.
Determination of election petitions must be done within six months.
At the Supreme Court, the Judges had to contend with three presidential election petitions. The Judges, led by Chief Justice David Maraga, made history when they nullified, in a majority decision, the outcome of the August 8 presidential election.
In the case filed by National Super Alliance candidate Raila Odinga and his running mate Kalonzo Musyoka, the court found that the Commission failed to conduct the election in accordance with the constitution and the applicable electoral laws and ordered IEBC to conduct a fresh election within 60 days.
But even after ordering Mr Chebukati to carry out a fresh election, more cases were filed in court touching on the repeat poll. Finally the poll was held amid the withdrawal of Mr Odinga and Mr Musyoka.
Three activists moved to court on the eve of the election and tried stopping the poll but the Supreme Court was hit by lack of quorum. Only two judges were in court for the hearing and the case aborted.
Still on the eve of the election day, High Court Judge George Odunga ruled that the appointment of constituency returning officers and their deputies was illegal.
The decision forced the IEBC to move to court late in the evening and managed to overturn the decision.
The cases didn’t stop there as five cases were filed at the Supreme Court over the repeat poll.
Some of the cases were, however, removed from the hearing list because they were not urgent. Two of the cases — by Harun Mwau and another by Njonjo Mue and Mr Khalifa — were consolidated and heard by the court.
The court later, in a unanimous decision, dismissed the two cases even though the petitioners urged them not to fear nullifying the outcome for the second time.