PRESIDENTIAL ELECTION PETITION 2017.
By Wahome Thuku
A Presidential Election Petition is governed by the Constitution, the Supreme Court Act and the SC (Presidential Election Petition) Rules 2017, developed by the court this year.
– The petition is filed on Form A, stating name and address of petitioner(s), date of election, results, date declared if any, grounds of petition, name and address of petitioner’s lawyer for service.
-May be filed by more than one co-petitioners each petitioner may file own petition. The 14-day period for hearing and determining the petitions start counting on the date the last one is filed.
– Petition is signed by petitioner or authorised rep. Supported by an affidavit sworn by the petitioner in person or one of them if more than one. Petitioner must also file witness affidavits (preferably from NASA agents).
– Petition is filed within 7 days of results declaration. Petitioner must deposit 1 million bob as security for costs.
– Within 2 days of filing, the petitioner shall serve the respondents (President elect, deputy and IEBC) either directly or through a newspaper of national circulation.
-Within 6 hours of filing, petitioner must serve the respondents electronically.
Within 3 days of the filing, the Registrar of the SC publishes the petition in the Kenya Gazette and also a notification of it in a newspaper with national circulation.
Within 48 hours of being served, the IEBC must submit to the court satisfied copies of ALL the documents used to announce and declare the results at the polling stations (Forms 34A) at the constituency tallying centers (Forms 34B) and at the national tallying center (Form 34C)
-Within 4 days of receiving the petition, the respondent may file a response (answer to petition) in Form B and serve the petitioner (s). The response may be accompanied by a Respondent’s affidavit and those of witnesses.
– A Respondent who doest wish to oppose the petition shall file Notice of Intention Not To Oppose on Form C and serve a copy to petitioner. That Respondent locks himself out of the petition completely.
Eight days after filing a petition, a Pre-Trial conference is held by the parties and judges. The parties are notified of the date and time of the conference by the SC Registrar through Form D.
During the conference, parties and judges frame the contentious and uncontested issues, consolidate the petitions if many, give directions on hearing dates and time and direct IEBC on how to handle the relevant electoral material before the hearing.
Once hearing starts, it shall proceed daily with no interruptions to conclusion unless the court decides otherwise
The court shall, after hearing either:
Dismiss petition, declare the president-elect validly or invalidly elected, invalidate the declaration by IEBC, make orders on costs, or make any other order it may deem fit and just in the circumstances.
The court may give a decision in one line (read in 2 minutes) and reserve the detailed judgement (reasoning of the decision) to be delivered not later than 14 days.
Decision of the court is final.