Court Deals Big Blow To CJ Koome In Raila's Elections Petition

CJ Koome had changed the rules that govern proceedings of the Supreme Court to block lawyers and litigants from making comments on a presidential election petition.

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Aug 17, 2022 - 08:52
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Court Deals Big Blow To CJ Koome In Raila's Elections Petition

The High Court has thrown away a decision by the Supreme Court that bars lawyers from making comments on a presidential election petition while it is still being heard. 

Justice Mugure Thande ruled that the Supreme Court (Presidential Election Petition Amendment Rules) 2022 are declared unconstitutional for not adhering to Public Participation requirements and for usurpation of the authority of Parliament. 

CJ Koome had changed the rules that govern proceedings of the Supreme Court to block lawyers and litigants from making comments on a presidential election petition.

The Supreme Court of Kenya. /FILE

The amended rules saw her ban litigants, their advocates and agents from expressing their opinions or predicting the outcome of a case involving the election of the President.

“Upon commencement of the hearing of the petition by the court, litigants, their advocates and advocates’ agents shall refrain from expressing their opinion on merit, demerit or predict the outcome of the petition in any manner that would prejudice or impede court proceedings, until judgment is delivered,” read the rule.

A breach of the direction would have amounted to contempt of court, meaning those found culpable of breaching the rule will be punished.

Former Law Society of Kenya (LSK) President, Nelson Havi, had welcomed the new directive which he termed a boost for him and Senior Counsel, Ahmednasir Abdullahi.

"The attempt to gag Ahmednasir Abdullahi and Nelson Havi from publicly examining and commenting on proceedings before the Supreme Court has been timely thwarted by the High Court," he tweeted.

The amendment was said to have been triggered by social media comments and predictions by top advocates and other Kenyans in relation to the outcome of the Constitutional Amendment Bill – the Building Bridges Initiative (BBI) case in May 2022.

The CJ had castigated Ahmednasir, Havi and Esther Ang’awa for commenting about the possible outcome of the case through social media.

“I will file a petition in the High Court to have this retrogressive, unlawful, and unconstitutional legal notice by CJ Martha Koome quashed and declared null and void. The Judiciary cannot be the adjudicator and the legislator at the same time, worse still, in its own cause,” Havi said at the time.

Meanwhile, the Supreme Court moved from its tradition of hearing the presidential election petition from the Supreme Court building in Nairobi CBD to the Milimani Law courts in Upperhill. The building was used to hear petitions in 2013 and 2017.

“Usually the Supreme Court sits in Nairobi CBD but this year they saw it fit to set up the court at the Milimani Law Courts. It is likely due to the space and the pandemic is still with us,” Citizen TV's Dzuya Walter noted.

The Judiciary has already stationed staff at the Milimani Law Courts to handle the work expected to start streaming in as election losers prepare their legal teams. At the venue, there is a tent set aside for lawyers and journalists who will be covering the case.

The Supreme Court Judges will be seated inside another room within the Milimani Law Courts building.

Azimio la Umoja presidential candidate, Raila Odinga, announced that he will be moving to the Supreme Court to challenge the election of William Ruto as Kenya's fifth president.

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