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Part of the debate around the Supreme Court presidential petition is based on key Constitutional aspects, from the role of the Independent Electoral and Boundaries Commission (IEBC) to the power of the apex court to order a recount, nullify and uphold the August 9 polls.
The Latin lexicon used in court will also surface, from phrases such as amicus curiae which means friend of the court to res judicata - a matter that has been judged.
However, prior to the court's proceeding, a debate ensued on three key terms re-run, run-off and fresh elections. The Supreme Court may order a re-run, run-off or uphold IEBC results after Azimio La Umoja flagbearer, Raila Odinga challenged President-elect William Ruto's victory.
Led by its president and Chief Justice, Martha Koome the highest court in Kenya is expected to issue a ruling on Monday, September 5. With the petition hearing in mind, what's the difference between a fresh Presidential Election, a re-run and a run-off?
Lady Justice Martha Koome (center) and the other members of the Supreme Court bench. FILELawyer Peter Kaimba explained to Kenyans.co.ke that a fresh presidential election, similar to what took place on August 9, involves the launch of an electoral exercise where candidates are invited to apply for a chance to contest for the highest office on the land.
IEBC will thus vet applicants a fresh and issue new election timelines. New faces other than those voted for on August can appear on the ballot.
A run-off, on the other hand, is a contest between top two Presidential aspirants from a fresh election where none scored more that the requisite 50 per cent plus one threshold.
"Fresh elections is like what happened on August 9, 2022. That is when we do the nationwide General Elections.
"A run-off happens in the event that the winner has not met the election threshold of 50 per cent plus one more vote. It is usually between the number one and number two who were contesting," Kaimba stated.
A run-off in this case may be between Raila Odinga and William Ruto only, if none of the four candidates in the August 9 polls met the required threshold - 50 per cent + 1 vote and 25 per cent of votes in 24 counties.
A re-run, according to Kaimba, is similar to a run-off but involves the repeat of an election where all candidates remain on the ballot. No new aspirants are vetted nor allowed to be in the race.
Regarding the suits filed at the Supreme Court, Kaimba explained that there was a chance some of the petitions will be consolidated depending on the prayers presented by each party.
"The Court will have a look at the petitions that have been filed and decide which one will be combined. What will determine if the three can be consolidated is the prayers that are being sought by each of the petitioners," he added.
For Raila Odinga, the lawyer observed that the former Prime Minister was seeking a run-off by arguing that none of the Presidential contenders hit the 50 per cent plus one vote threshold.
In his petition, Raila also wants to be declared president-elect if the court orders a recount and finds him the winner.
"And order be and is hereby made consequent upon nullification of the declaration of the results announced by Wafula Chebukati directing IEBC to tally and verify the count and declare Raila Odinga and Martha Karua as duly elected as President-Elect and Deputy President Elect respectively," one of the 21 reliefs Raila seeks in court reads.
The Supreme Court of Kenya. KENYANS.CO.KE, By Derrick Okubasu, Kenyans.co.ke
It is a rush against time as the Supreme Court prepares to hear the nine petitions filed Monday to challenge the outcome of the August 9 presidential polls.
The petitions are likely to be consolidated into one petition during the pre-trial conference.
The Azimio la Umoja One Kenya Coalition and eight other petitioners want the Supreme Court to overturn President-elect William Ruto's win citing irregularities and a mismatch of election results.
Petitioners are on Tuesday expected to serve the respondents with the petition.
Ruto, the Independent Electoral and Boundaries Commission and its chairman Wafula Chebukati have been listed as respondents in the petitions.
Upon being served, the respondents will have four days to file and serve the petitioners with their responses to issues raised. This will be on Saturday, August 27, 2022.
Thereafter, the petitioners will file and serve their rejoinder to the responses filed by the respondents on August 28.
A day later on August 29, parties will be given time to file interlocutory applications.
Interlocutory applications are used to ask the court to make certain orders particularly when one party believes the other has not complied with court procedure obligations.
They are basically used to stop parties from acting unethically during litigation of a matter.
On Tuesday, August 30, parties will have time to file and serve responses to interlocutory applications.
The following day on August 31, individuals interested in being enjoined in the petitions as friends of the court, otherwise known as amicus curiae in legal jargon, will file their applications and serve the parties.
An amicus curiae is an impartial adviser to a court of law in a particular case.
On Thursday, September 1, the Supreme Court will hold the pre-trial conference.
A pretrial conference is a meeting of the parties to a case conducted prior to trial.
Generally, a pretrial conference serves several reasons.
It helps the court to establish managerial control over the case and discourages wasteful pretrial activities.
The court also uses the conference to improve the quality of trial with thorough preparation including eliminating repetitive evidence.
During the pre-trial conference, judges will formulate and simplify the issues in the petition, eliminate frivolous claims or defences, obtain admissions of facts and documents to avoid unnecessary proof, and identify witnesses and documents.
The court will also use the pre-trial conference to make rulings on interlocutory applications and applications for those seeking to be friends of the court.
After the pre-trial conference, the court will begin hearing the petition the following day on September 2 and deliver its verdict on September 5, 2022, fourteen days after the petition was filed. By Emmanuel Wanjala, The Star