REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA AT NAIROBI
(Coram: Maraga, CJ & P, Mwilu, DCJ & V-P, Ojwang, Wanjala, Njoki S. Ndung’u and Lenaola, SCJJ)
ELECTION PETITION NO. 1 OF 2017
BETWEEN
1. RAILA AMOLO ODINGA …………….………………….….1ST PETITIONER
2. STEPHEN KALONZO MUSYOKA ……………………..…2ND PETITIONER
AND
1. INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION……………..….…………1ST RESPONDENT
2. CHAIRPERSON, INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION……..…….……..2ND RESPONDENT
3. H.E UHURU MUIGAI KENYATTA……..……..……….3RD RESPONDENT
DETERMINATION OF PETITION WITHOUT REASONS
(Pursuant to Rule 23(1) of the Supreme Court (Presidential Election Rules) 2017
[1] The hearing of this Petition was concluded on Tuesday, 29th August 2017 well after 9.00 p.m. The Judges thereafter retreated to deliberate on the following issues for determination as crafted by the court:
(i) Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections.
(ii) Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.
(iii) If there were irregularities and illegalities, what was their impact, if any, on the integrity of the election?
(iv) What consequential orders, declarations and reliefs should this court grant, if any?
[2] Having carefully considered the above issues, the following is the majority decision of the court with two Judges (J.B Ojwang and N. S. Ndung’u SCJJ) dissenting):
(i) As to whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections, upon considering inter alia Articles 10, 38, 81 and 86 of the Constitution as well as, Sections 39(1C), 44, 44A and 83 of the Elections Act, the decision of the court is that the 1st Respondent failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.
(ii) As to whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election, the court was satisfied that the 1st Respondent committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which will be given in the detailed and reasoned Judgment of the court. The court however found no evidence of misconduct on the part of the 3rd Respondent.
(iii) As to whether the irregularities and illegalities affected the integrity of the election, the court was satisfied that they did and thereby impugning the integrity of the entire Presidential Election.
[3] Consequent upon the above findings, and as to what orders, declarations and reliefs this court should grant, the following are the orders of the court pursuant to Article 140(2) and (3) of the Constitution and Rule 22 of the Supreme Court (Presidential Election) Rules:
(i) A declaration is hereby issued that the Presidential Election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void;
(ii) A declaration is hereby issued that the 3rd Respondent was not validly declared as the President elect and that the declaration is invalid, null and void;
(iii) An order is hereby issued directing the 1st Respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this determination under Article 140(3) of the Constitution.
(iv) Regarding costs, each party shall bear its own costs.
[4] A detailed Judgment containing the reasons for this decision and the dissents will be issued within 21 days of this determination in conformity with Rule 23(1) of the Supreme Court (Presidential Elections) Rules, 2017 as it is otherwise impossible with the limited time the court has, to do so.
[5] It is so ordered.
DATED and DELIVERED at NAIROBI this 1st Day of September, 2017
………………………………………….. ……………………………………………
D. K. MARAGA P. M. MWILU
CHIEF JUSTICE & PRESIDENT DEPUTY CHIEF JUSTICE & VICE
OF THE SUPREME COURT PRESIDENT OF THE SUPREME COURT
…………………………………………. …………………………………………….
J. B. OJWANG S. C. WANJALA
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
…………………………………………. ……………………………………………..
N. S. NDUNG’U I. LENAOLA
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
I certify that this is a true copy
of the original
REGISTRAR
SUPREME COURT OF KENYA
………………………………………………………………………
(DISSENTING JUDGMENT)
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA AT NAIROBI
(Coram: Maraga, CJ. & P; Mwilu, DCJ & V-P; Ibrahim, Ojwang, Wanjala, Njoki Ndungu & Lenaola, SCJJ)
PETITION NO. 1 OF 2017
– BETWEEN–
1. RAILA AMOLO ODINGA
2. STEPHEN KALONZO MUSYOKA …………..…………PETITIONERS
– AND–
1. INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION
2. THE CHAIRPERSON OF THE INDEPENDENT …RESPONDENTS
ELECTORAL AND BOUNDARIES COMMISSION
3. H.E. UHURU MUIGAI KENYATTA
SUMMARISED DISSENTING OPINION OF OJWANG, SCJ.
[1] It is not necessary in this summarized Judgment – which is to be followed by a fully detailed and reasoned decision on an occasion already signalled by the Chief Justice and President of the Court – to give the comprehensive facts, submissions and legal principles bearing upon the instant petition.
[2] The important petition, which seeks the annulment of Kenya’s Presidential election results emanating from the General Elections of 8th August, 2017, is focussed on a limited number of contentions: (a) that the said Presidential Election was not conducted in accordance with the relevant principles of the Constitution; (b) that the said Presidential Election was compromised by certain illegalities and irregularities; (c) that, consequently, the said General Election lacked integrity, and ought to be invalidated.
[3] Whereas the substance of the case founded on illegality and irregularity rests on the voting-results electronic transmission process, there is substantial information showing that, by law, the conduct of the election should have been mainly manual, and only partially electronic. Hardly any conclusive evidence has been adduced in this regard, which demonstrates such a manifestation of irregularity as to justify the invalidation of the election results.
[4] As regards the invocation of the Constitution as a basis for annulling the electoral process, only general attributions of impropriety have been made, and furthermore, without adherence to the prescription that the task of interpreting the Constitution with finality, rests with no one but the Courts – in this case, with this Supreme Court.
[5] Much of the evidence which the majority opinion adopts, is largely unascertained, apart from standing in contradiction to substantial, more credible evidence.
[6] In such a marginal state of merits in the case challenging the conduct of elections on 8th August, 2017, it is clear to me beyond peradventure, that there is not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will, which was recorded on 8th August, 2017.
[7] The procedural law for assuring the integrity of elections is abundantly set out in the Elections Act, 2011 (Act No. 11 of 2011), and in the Electoral Code of Conduct; and the relevant provisions were conscientiously applied by the Independent Electoral and Boundaries Commission, which fully provided for the role of international and local observers, as well as agents, in the conduct of the Presidential Election. The resulting electoral process had all the vital features of merit, as all the observers publicly acknowledge.
[8] To disregard such outstanding features of merit in the just-concluded elections, is to overlook the most basic democratic principles which safeguard the electors’ entitlement to choose their public office-holders.
[9] In summarized form, I hereby record, without equivocation, my dissent from the Judgment given by the numerical majority of the Supreme Court Bench. For my part, I would dismiss in its entirety the petition which came up before us, as it was devoid of requisite supporting evidence, just as it did not rest upon the pillars of the Constitution, the ordinary law, or the pertinent elements inherent in the configuration of a democratic election.
[10] In accordance with the terms of Section 26(2) of the Supreme Court Act, 2011 (Act No. 7 of 2011), I hereby reserve the detailed, reasoned edition of my opinion, to be delivered within the next 21 days.
DATE and DELIVERED at NAIROBI this 1st day of September, 2017.
………………………………………………
J.B. OJWANG
JUSTICE OF THE SUPREME COURT
