The common chorus for election losers, from their opponents (surprisingly) has always been ‘Go to Court! Go to Court! File a Petition.’ In the backdrop of this chorus is that the Kenyan judiciary has never ruled in favor of the petitioner in a presidential election. The chorus is thus informed by the idea that the petition will be buried in such a barrage of legal complexities that it will never materialize. A lot has changed, especially in the last few years, but the question is, is it enough?
1. Matiba v. Moi (1993)
Most people remember this case only and with good reason. Matiba was
the ‘rightful winner’ in the first multiparty elections, rigged out by
an entrenced political system and weakened by wrangles in the
You can call him Daniel...okay no, you can't.
strong candidate backed by the central region and basing his election
on the incumbent’s errors in the his first 14 years in office, he lost
because he and Kibaki (later 3rd President) split the core vote.
Tereeeeen...oh, what's that? Its no longer 1992? Ah....
In the second case (the first one matched the one filed by Orengo),
Matiba covered the issue of intimidation, violence and other election
As with all other cases determined by the
highly biased judiciary of the Moi years, Matiba vs. Moi was dismissed
on a flimsy reason. Kenneth Matiba had become physically incapacitated
sometime prior to or during the elections and had given his wife the
power of attorney. He did not personally sign the petition, a
technicality that KANU lawyers pounced on until Justice Riaga Omolo
struck out the petition. It later came back to haunt him, the judge,
during vetting in 2012 when he was declared unfit by the Board
specifically for this decision. “It gratuitously showed grave
disrespect for disabled people, castigating the petitioner in an
ungenerous and uncalled for manner.”
2. Orengo vs. Moi and 12 others (1994), Matiba vs. Moi, Imanyara vs. Moi
Orengo’s petition challenged Moi’s eligibility on the grounds that he
had already served two terms in office. The challenge was that the
term-limits rule applied to Moi who had already served three terms :
1979-1983, 1983-1988, 1988-1993. The case was simply about the intention
of Parliament in passing Act No. 6 (1992) which the petitioners in the
three different cases argued should have been retrospective (applied to
Moi as well as future presidents).
Orengo, and the rest of the Young Turks. ..and no, the beard was not a necessity....
The court determined that a statute had to have the words to the effect
that it could operate retrospectively and that “from the plain language
of the statutes, they were to be interpreted to operate prospectively…”
3. Mwai Kibaki vs. Daniel Arap Moi (1997)
Kibaki in 1997 was Matiba in 1992, number 2 and clearly rigged out by
the incumbent. Kibaki published the notice of petition in the Kenya
Gazette, the official government publication which Moi by his duties as a
citizen and president should have been able to access and read.
Apparently, CAPS LOCK on a typewriter was not recognised too...
Judges Emmanuel O’Kubasu, Mbogholi Msagha and Moijo ole Keiwua struck
out Kibaki’s petition on the simple basis that he had not personally
served Moi with the petition.
This decision was later upheld in the Court of Appeal by Judges Chunga (CJ), Aa Lakha, Owuor JJ and Omolo (again).
This clearly unfair decision led to the explicit declaration in the new
petition rules to avoid such a scenario: “Upon filing a petition, the
petitioner shall serve the petition on the respondent within 24hours.
Service of the petition on the respondent shall be —(a) directly on the
respondent; or (b) by advertisement in a newspaper with national
circulation,” Rule 8 says.
4. Mwau vs. Moi, 1992/3
When Mwau entered the political scene in 1992 as a candidate for the
presidency and the Westlands parliamentary seat, he did so with the
flair that later became his personal brand. He was a former police
officer with a curious interest in the letter of the law. Mwau, stickler
for detail and with billions to burn, rushed to court and filed a
petition seeking to nullify Moi’s victory on the grounds that he (MOi)
and all other candidates had not been properly nominated. He argued, in
part, that he be made President because all the other candidates had
failed to use the ‘right paper’ to present the lists of their
nominations. He had only garnered 6, 499 votes, 0.1% of the total vote,
the least in the elections, even less than David Mukaru Ng’ang’a of
whom I bet you have never heard.
“There might be much
difference between a foolscap of 8 1/2 × 13 1/2 in (216 x 343 mm) and
the International Standards Organization A4 measure of 21cm × 29.7cm,
but Mr. Mwau argued strongly that candidates do not have the leeway to
decide which rules to observe and which to ignore.”
While the case was dismissed, the court praised Mwau for his keen eye for detail, resilience and tenacity.
President Moi and all the other candidates, save for Mwau, in the 1992
election ignored the rules and presented their documents on A4 instead
of foolscap paper.
Mwau, representing himself, “implied that a
pool of presidential candidates who could not understand the distinction
between A4 and foolscap could not be fit for high office. He also
stated during the case that the simple disregarding of such a key rule
was an indicator that the president would likely ride to roughshod over
the law.” Since then, presidential candidates have been extra keen on
the stipulated size of paper.
5. CORD vs. IEBC/Jubilee 2013
Whichever side one’s political allegiances lie, this case will be the
‘Mother of all Cases’. The CORD legal team is a curious combination of
lawyers Mutula Kilonzo and Orengo as advisors, both on opposite sides in
the case the latter filed against the former’s client, president Moi,
in 1992. Also in the team is Gitobu Imanyara, another petitioner who
lost a petition where Kilonzo represented Moi.
Nowrojee, another member of the team, represented was in Kibaki’s
1997/8/9 petition legal team. Note also the presence of Amos Wako,
former Attorney General, in the legal team. If anything, this case
promises to be precedent setting. Note how the March 4th elections were
defined by the previous presidential election petitions. The extra care
paid to the type of paper, the method of filing the petition and the
application for disclosure of evidence. The time the SCOK can take to
determine the case is also explicitly stipulated, seeing that Kibaki’s
petition against Moi was determined 18 months after the elections.
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