Attorney-General Githu Muigai wants to join the petition challenging the re-election of President Uhuru Kenyatta.
In an affidavit filed in court on Friday, Prof Muigai says he is authorised under Article 156(5) of the Constitution to appear, with permission of the court, as a friend of the court in any civil proceedings to which the government was not party.
The National Super Alliance (Nasa), through lawyer Paul Mwangi, has indicated that they will be opposing the application by Prof Muigai to join the petition in which its presidential candidate Raila Odinga is challenging a declaration that President Kenyatta won the August 8 General Election.
Mr Mwangi says the AG exhibited bias in a previous instance when he made such an appearance.
But in the application, Prof Muigai said the conduct of presidential elections is a matter of great public interest necessitating his participation as the Attorney-General, and principal legal advisor to the government.
VALIDITY OF RESULTS
He said in the application that the constitutional and legal threshold for invalidating a presidential election should be considered “within the context of the applicable legal and evidential burden of proof, the standard of proof and the irregularity in issue”.
He said there exists a rebuttable presumption in law as to the validity of election results declared by respective returning officers, which creates a legal and evidential burden of proof upon the person who seeks to upset it.
“Hence, the Attorney-General submits that the threshold required to disturb the election is such that the evidence has to disclose profound irregularities in the management of the electoral process,” he adds.
He argues that Nasa is entitled to relief not merely on the basis of proven non-compliance but where it is shown that non-compliance with electoral regulations has resulted in a variation of the allocation of votes between the contenders.