Whereas AG Githu Muigai called on the Supreme Court to take into account the elections Act, the 2nd amicus LSK’s Stephene Mwenesi asked the court to stick to the constitution.
To put it clear, here are the sticking points:
LSK holds that the Supreme Court can review its decision and change the standard of proof it set in 2013
While the AG says that the court should put weight on the Election laws (mainly elections Act) and also look at the Constitution
The AG says that the court has no reason to change its standard that it set in 2013 which it has used in more than 7 other cases
LSK told of AG Muigai by argueing that an election can be nullified if the Constitution has been breached as that makes the election impure
AG Githu Muigai’s submissions seem to favour Uhuru since he asks the supreme court to only look at the basic elections Act and stick to the 2013 decision (remember Raila petition was thrown out in 2013)- this is being chicky on the part of the AG.
“The jurisdiction of this court in election petitions is in Article 163 (3) exclusively. We cannot agree with the AG that this court should look to the Elections Act.”- Stephene Mwenesi
“Article 87 mandated parliament to enact statutes for mechanisms for elections.”
-Counsel Stephen MWENESI for LSK- amicus
Justice has no favourite daughters other than the truth and the truth is to determine if election was held as per set rules and refulations in line with the constitution – Lawyer Omwanza Ombati for LSK amicus
The Court of Appeals precedent popularly known as as Maina Kiai case and the 2013 supreme court ruling on Raila Petition will be critical in determing the outcome of the petition Independent Electoral & Boundaries Commission vs. Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy  eKLR; Civil Appeal 105 of 2017