SUPREME COURT TO HEAR PETITION APPEAL AFTER BY ELECTION.

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From left: Supreme Court Judges Njoki Ndungu, Jackton Ojwang, Chief Justice Willy Mutunga(center) Deputy Chief Justice Kaplana Rawal,Philip Tunoi, Mohamed Ibrahim and Smokin Wanjala.
By Kurian Musa

A precedent on the size of the Supreme Court bench that can hear and determine a case was set out in the ruling of a case by Chris Munga Bichage, former Member of Parliament Nyaribari Chache Constituency.

The appeal by Mr Bichage remains longer in court, a year into the election year in Kenya, 2017. Petition number 17 0f 2014, is the longest election petition under the new constitution of Kenya.

The Supreme Court allowed the matter to go to a full hearing, after several preliminary objections by his challenger Richard Tong’is lawyers who wanted a full bench of judges to hear the case.

It means that Nyaribari Chache voters could be in for another by-election if the Supreme Court finds that Mr Bichages’ win was annulled improperly by the court of appeal sitting in Kisumu.
Although Bichage participated in a by-election after the appeal court ruling, he lost and made an appeal against the ruling.

Advocate Ochieng’ Oduol representing Mr Bichage argued that the constitution of Kenya, 2010, or the Supreme court Act, 2011 as well as the Supreme court rules , 2012 does not have a provision for the Chief Justice to set a seven judge bench to hear an application.

MP Richard Nyagaka Tong’I , represented by Senior Counsel Okong’o Omogeni was dealt a blow when the judges concurred with Advocate Ochieng’ Oduol that there is no specific provision for the quorum required to review a previous decision of the Supreme Court.

Ochieng said it is not a constitutional right for the Chief Justice to set a set of prescribed judges, whether five or Seven.He submitted that it was a discretion and practice for a given court.

The lawyer also argued that if a full bench was allowed, then Mr Bichage’s election appeal would further delay against timeliness in determining election petitions. He said the preliminary objections were a tactic to delay the conclusion of the matter.

Chief Justice Willy Mutunga led other judges; Kalpana Rawal, Mohamed Ibrahim, Jackton Ojwang and Smokin Wanjala is setting a Kenyan judicial precedent by saying: “The Supreme Court has no specific provision requiring that on reviewing (The court’s) decision a greater number of judges should sit.”
Mutunga led five judge Bench held that there is a challenge in the bench size of seven in the Supreme Court.

They ruled that: “In quest of greater stability, and in latitude allowed by the constitution, we will take the position, in these times, that the prescribed Bench quorum, with the essential research and scholarly assistance, and with the back-up of professionally competent advocacy from the Bar, will be properly constituted to hear and determine all matters coming up before it.”

In the United States Supreme court, the minimum number of judges that can form a bench is six. And senior counsel George Oraro was faulted by Justice Mohamed Ibrahim that the Supreme Court rules the term ‘Full Bench’ means bench of seven judges.

“The Counsel should note that the Supreme Court Rules cited have since been deleted by the Supreme Court Rule, 2012 which did away with definition of Full Bench. The current state is any number as may be constituted by the Chief Justice.

I there was a vacancy in the office of the Deputy Chief Justice, Judge Mohamed ruled, a six judge Bench can sit to determine a matter.
What it mean with Suspension of Justice Tunoi?

The Friday ruling sets it clear that with the Suspension of Justice Tunoi, there will be no crisis at the Supreme Court. Even if the deputy Chief justice Kalpana Rawal case challenging her retirement goes either way, a precedent has been set on the size of the Supreme Court Bench that can hear and determine a matter.

Judge Mohamed Ibrahim noted that the law provides that if the Bench is equally divided the decision sought to be reviewed is deemed affirmed.

“The upshot is that I would also hold that in the circumstances Justice Tunoi is not disqualified since the doctrine of necessity must operate in order for the Supreme Court to perform its constitutional functions,” said Judge Mohamed.

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