High Court has struck out the petition filed by former Kilome Member of Parliament Harun Mwau seeking to stop fresh presidential elections scheduled for tomorrow.
Justice Chacha Mwita holds that matters relating to disputes on the presidential elections are the sole preserve of the Supreme Court.
“I find and hold that this Court has no jurisdiction to deal with the petition before it as the issues raised in the petition fail within the jurisdiction of the Supreme Court. Consequently, the preliminary objection succeeds and the petition dated 16 October 2017 is declined and struck out” ruled Justice Chacha.
The judge noted that, following the order if supreme that directed IEBC to hold election within 60 days and text in Article 163(7) which states that the decisions of the supreme court are binding on all other courts, the judge found that the effect of the petition is to circumvent the supreme court decision, a jurisdiction that high court doesn’t have.
The judge further pointed out that the petition didn’t seek to enforce an individual’s fundamental rights and freedom under the constitution but rather to determine the issue on nomination of presidential candidates and process leading to the election.
“It is important for this Court to remain faithful to the jurisdiction granted to it by the constitution” ruled the judge.
Mr. Mwau moved to court to stop the October 26 repeat presidential election.
In a certificate of urgency, Mwau says the election is being conducted contrary to the constitution.
He argued that after the Supreme Court nullified the August 8 presidential poll results, IEBC should have conducted fresh nominations before carrying out a fresh election.
In his petition, he sued the IEBC and its chair Wafula Chebukati.
The former Kilome MP’s case came 10 days to the repeat election.
Mr. Mwau through his lawyer claims IEBC has violated the constitution and laws applicable to presidential elections purported through Gazette Notice No 8751 Vol CXIX-No 130 purported to exempt candidates from nomination in fresh presidential elections as ordered by the Supreme Court after nullification the elections held on 8 August 2017.
He further claims they have violated Supreme Court order that fresh elections should be conducted according to the constitution and election was.
Mwau claims the commission is seeking to waive provisions of the constitution and the law which they have no power to do.
“As a matter of course, if fresh the fresh elections are allowed to proceed as the respondents intend, the supreme court, like night follows the day, will invalidate the same” the documents state.
He says the presidential elections should be conducted in accordance with the constitution due to public interest and also the effect of the elections on the economy and the strain of public resources.
“It will be unfair, unjust and it will injure public interest for the Court to allow an election to proceed other than prescribed by the constitution,” said Mwau.
Mwau wants the matter to be heard and determined expeditiously and in a timely manner and unless the inexorable illegal and unconstitutional elections proceed creating a constitutional crisis and public uncertainty.
President Uhuru Kenyatta while responding to Mwau petition dismissed assertions by former Kilome MP Harun Mwau over Thursday’s repeat Presidential polls.
He also urged the court to dismiss the suit.
President Kenyatta says that there is no basis for fresh nomination of candidates as prayed by Mwau.
The issues raised by Mwau, he said were conclusively and adequately dealt with by the Supreme Court in the 2013 election petition.
President Kenyatta says that fresh nominations are not required in an election under Article 140(3) on grounds that the constitution itself does not command fresh nomination for a fresh election.
