5 Most Intriguing Kenyan Presidential Election Petitions

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 opposition.
You can call him Daniel...okay no, you can't.

A 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 irregularities.

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.

Pheroze 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.

Part Of Evidence CORD is set to table before Supreme Court

In what promises to be a Titatic battle at the supreme court, CORD has officially announced that it is officially filling its petition against IEBC presidential figures released . and as part of their evidence, here is a sneak preview of their inside argument.

' IEBC cannot do simple addition! The standard newspaper today on pg 5 published the total presidential votes from the 47 counties. The total given for Raila is 5,407,889 against Uhuru's 6,173,433. The total voter turnout was given as 12,338,667. If you are a mathematician you will find  that IEBC concealed 67,343 of Raila's votes. This figure would have pushed the voter turn ... to 12,406,010. 50% of this gives you 6,203,005. This figure is higher than Uhuru's 6,173,433 which apparently gave Uhuru  50.07%! The actual score should have been 49.76%!'

Meanwhile, CORD received a boost when Leaders drawn from Kisii and Nyamira Counties have vowed to support the petition filed by CORD to have the election of President Elect Uhuru Kenyatta nullified.

Do CORD Really Have A strong Case Against IEBC?

The Independent Electoral and Boundaries Commission (IEBC) has said Coalition for Reform and Democracy (CORD)  leaders are relying on rumours in lodging their election petition at the Supreme Court.

Speaking through a phone interview, commission Chairman said Isaack Hassan said CORD officials are now desperate looking for evidence, since they have realised they don’t have a watertight case against the IEBC.

Hassan claimed that his commission conducted the just concluded elections with professionalism and said he and his commissioners are ready to face CORD leaders at the court of law if they have a case to file.

He urged them not to shout on cameras but instead file a case at the Supreme Court to prove how their won.

Hassan, who is a lawyer by professional, said conducting elections in Kenya is a challenging job which needs support from across the political divide but not condemnation.

CORD Coalition has been challenging the outcome of the just concluded General Election, where Uhuru Kenyatta was declared the

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STATEMENT BY SAFARICOM ON WITHDRAWAL OF LEGAL PETITION BY CORD COALITION

Safaricom welcomes the formal withdrawal of the legal Petition filed against it at the High Court of Kenya by Mr. Eliud Owalo a representative of the CORD Coalition.

Pursuant to the withdrawal of the Petition by the CORD representative, Safaricom has undertaken to play its part in explaining and or providing to the IEBC for onward presentation to the Judiciary all pertinent information.

This information is limited to what can be legally disclosed, what is technically available and specifically only that which directly emanates from its contractual scope with the IEBC.

The above notwithstanding, we stand by our earlier public statement of 6th March 2013 and we maintain that our contractual mandate to the IEBC was fully and properly executed.

We would also like to assure the public and all interested parties in this matter that we are fully cognizant of the importance of this process and the need for transparency by all players involved and this is the basis upon which we have extended our full cooperation to the courts.

Nzioka Waita,
Director Corporate Affairs, Safaricom Limited

Uhuru Vs Raila - Top Ten Counties

Top ten counties that voted for President –elect Uhuru Kenyatta and Prime Minister Raila Odinga in the just concluded Presidential election.
Top ten counties that voted for President –elect Uhuru Kenyatta
1. Kiambu - 705,185
2 Nairobi-659,490
3. Nakuru-494,239
4 Murang’a-406,334
5 .Meru-384,290
6. Nyeri - 318,880
7. Kericho-238,556
8. Nyandarua -232,808
9 Kirinyaga-231,868
10. Uashin Gishu-211,438
Top ten counties that voted for Raila Odinga
1. Nairobi-691,156
2. Kisumu-337,232
3. Machakos -319,594
4. Homabay-303,447
5. Kakamega -303,120
6. Siaya- 284,031
7. Kisii- 236,831
8. Makueni-228,843
9. Migori-225,645
10. Kitui 219,588

The Only Question That IEBC has Never Answered

According to the Final Figures Released by the IEBC on the Presidential Results; I do believe that the figure would be out soon clearly for the public, IEBC has an open question to answer to the Millions of Voters.

The number of Votes cast does not tally with rejected votes plus votes received by all the candidates combined.This is the biggest mystery of all behind the disputed Kenyan polls.

A Message From Raila Odinga to the CORD Elected Candidates

REMARKS OF CORD PRESIDENTIAL CANDIDATE, RT. HON RAILA ODINGA AT MEETING WITH GOVERNORS, SENATORS AND MPs-ELECT; MARCH 12, 2013; KENYATTA INTERNATIONAL CONFERENCE CENTRE.
****************************
Thank you for heeding my call on short notice and attending this meeting, at this critical moment in the history of our country.
I also wish to congratulate each of you for the hard fought battle and hard won victory.

The victory by each of you has taken our party closer to having the numbers that will enable us implement our dreams for Kenya.
I also want to thank each one of you, whether you won or lost, for standing with our party.

Some of you stood with CORD against great odds and in the midst of obvious options that would have seen you ride easily to victory.
But you chose principle and ideology over expediency, euphoria and tribe. You chose what is right and not what was easy in this election. For this, I honour you and I congratulate you.
But you chose principle over convenience and comfort and ran on CORD ticket. I congratulate all of you.

In running on CORD, you have taken our struggle for change and reform forward. But a lot remains to be done.
As I said on many occasions before election, our opponents believe that reforms and change are already here and we need not fight for them anymore.

To us in CORD, this election is just the beginning of the push by the people of Kenya to realize the fruits of their labour as far as change, reforms and democracy are concerned.

I want to remind you of the words of the late US President Ronald Reagan Remind Kenyans of the words of Ronald Reagan and I quote…
"Freedom is never more than one generation away from extinction. It must be fought for, protected and handed on to the next generation for them to do the same or we will one day spend our sunset years telling our grand children what it was once like in a country where men and women were free but no longer are."
We are here to defend democracy and secure it for posterity.
That is why we will shortly be moving to court; to secure the gains we have made so far and to get more.The Supreme Court that we are moving into is itself a product of a long and painful struggle that caused people their careers and their lives.

It is now a reality, and should be part of our motivation to defend what we have. Change and democracy are worth fighting for.
That is part of why we have convened here. I invite you to join our struggle to safeguard democracy for our children and their children.

We seek nothing other than safeguarding the gains made and ensuring that we hand over a better nation to our children.
In invite you to embrace the ideals of DUTY to the nation, SACRIFICE for the nation, COMMITMENT to the nation and PATRIOTISM to our nation.

These are the ideals that have sustained this nation and they are the same ideals that will carry us forward.

I want to appeal to the all Kenyans of good will, including those who ran in this election as presidential candidates, to support CORD in its quest for justice and truth through the courts of law.
Justice serves everyone in the end.

I want to remind all Kenyans of this famous classic poem which runs…
“First they came for the Jews and I did not speak out because I was not a Jew.

Then they came for the Communists and I did not speak out because I was not a Communist.

Then they came for the trade unionists and I did not speak out because I was not a trade unionist.

Then they came for me and there was no one left to speak out for me.”

Today, the victim may be CORD. Tomorrow, it will be somebody else.

Let us join hands in seeking justice and fairness at the polls.
Let us join hands in ensuring that elections count. That they are not exercises that are conducted to confirm preconceived conditions and positions.
Let us join hands in rejecting the notion that a little electoral theft here and there every five years constitutes some kind of magical progression towards greater democracy and change.
Above all, let us ensure peace and stability prevails in our country as we pursue justice in the courts.

I thank you.