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Actors in 2013 case set to face off again

Like a sequel to most Hollywood dramas, the battle of wits, legal jargon and mastery of the law set to play at the Supreme Court will be a case of different settings but the same old actors.

The complainants in the presidential election petition, Raila Odinga and Kalonzo Musyoka were in the same team and the case they filed on Friday at the Supreme Court is similar to the one in 2013.

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President Uhuru Kenyatta and his deputy William Ruto will, just like four years ago, seek to defend the legitimacy of their election which the National Super Alliance (NASA) has termed as fraudulent and an act of undermining democracy and the rule of law. However, the most unique change in the set of actors that will be represented in court is the composition of the Independent Electoral and Boundaries Commission (IEBC) that went through an overhaul at the beginning of the year after protests from NASA leadership.

And save for three judges who have retired, the composition of the Supreme Court that listened to the petition by Raila and Kalonzo in 2013 is still intact and there is a likelihood that the lawyers who will represent the sides in the case will be the same faces.

Like in 2013 Fred Ngatia was Kenyatta’s chief agent at the Bomas vote tallying centre in 2013 and also his main lawyer. At that time he led a team comprising the current Central Bank of Kenya chairman Mohamed Nyaoga, Katwa Kigen, Waweru Gatonye, Kindiki Kithure, Kipchumba Murkommen, Stephen Njiru and John Waiganjo.

On NASA’s side, it is most likely Siaya Senator James Orengo. Sources said three law firms have been contracted by NASA to work on the petition which runs to dozens of lawyers. The coalition has two days to serve the respondents in the case. The respondents will have four days to respond so at this stage it is not possible to know who their lawyers will be.

In 2013 Supreme Court judges Ibrahim Mohammed, Jackton Ojwang, Njoki Ndung’u, Philip Tunoi, Smokin Wanjala and Chief Justice Willy Mutunga declared that Kenyatta and Ruto had been validly elected. It was a unanimous decision. Justices Tunoi, Mutunga and Kalpana Rawal have since retired. They were replaced by David Maraga (Chief Justice), Philomena Mwilu (Deputy CJ) and Isaac Lenaola.

However the scrutiny on the Supreme Court that followed its decision in 2013 was so huge that while being interviewed for the position of CJ, Justice Smoking Wanjala said he would not like to seat in a presidential petition again.

“The role was an emotional burden and that only my mother and children stood by me after the seven judge bench made a decision to uphold Uhuru’s election,” he said.

“For the Presidential Election petition, let me tell you and let me be very candid: If it was my option, I would never want to sit and preside over an election petition matter,” he said.

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Since 2013, Raila’s supporters believe the Supreme Court was part of a conspiracy to deny him from ascending to power. But like in 2013, Jubilee has won majority of elective seats that analysts say the burden of proof will lie on NASA to prove that the presidential result was fraudulent.

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