Public interest litigants or defenders of Constitution?

The whole country was holding its collective breath. All eyes were on the Supreme Court as everyone awaited the fate of the case seeking to stop Thursday’s repeat presidential election.

Though it all ended in an anti-climax on Wednesday when the case failed to proceed due to a quorum hitch, the three people who filed the case had made a point.

One of the petitioners is Mr Khelef Khalifa, the director or Muslim for Human Rights (Muhuri) who is fast heading to the list of Kenya’s most prolific petitioners.

The same Mr Khalifa had been involved in a case whose outcome was a Court of Appeal declaration that results announced at constituency level are final.

He was also involved in challenging the procurement of biometric voter identification gadgets by the Independent Electoral and Boundaries Commission (IEBC) alongside human rights activist Maina Kiai.


But as far as prolific litigants go, activist Okiya Omtatah is on another level, his latest case having been filed at the Supreme Court on Friday seeking a nullification of Thursday’s repeat presidential election.

“The results of the purported fresh presidential elections held October 26, 2017 are invalid, null and void and of no consequences under the law,” he argues in the suit.

On October 11, he had filed a case at the High Court seeking an order that President Uhuru Kenyatta should not be declared president after Nasa leader Raila Odinga pulled out of the race.

Mr Omtatah has been involved in petitions on a wide array of matters, from duty-free sugar imports to images to be on Kenya currency.


But his involvement in the presidential election tug-of-war has seen him grab headlines in the past few days.

Cases around presidential elections seem irresistible to more Kenyans, and one who is warming up to the list of enthusiasts is Isaac Aluochier.

He was among the people interested in joining the Supreme Court case about the August 8 General Election as a friend of the court. His bid was declined.

On the similar presidential petition in 2013, Mr Aluochier applied to be enjoined as a friend of the court too.

Despite his articulate submission before the apex court judges, his bid was thrown out.


“Another opportunity will arise,” he told the Nation then. Well, it clearly did not arise in 2017.

The same Mr Aluochier, who often sues as a voter in Migori County, has been involved in a number of petitions, one of them seeking a declaration that Mr Uhuru Kenyatta, Mr Raila Odinga, Mr Musalia Mudavadi and Mr Peter Kenneth were not fit to vie in 2013 because of integrity issues.

His case was thrown out. He also filed a case at the High Court in 2012 seeking orders against 107 MPs after they had moved from the parties that sponsored them to Parliament. He did not succeed.

The Migori voter aside, former Law Society of Kenya chief executive Apollo Mboya is also creating himself space in the book of prolific petitioners.


He has taken part in petitions against Supreme Court judges, on parliamentary privileges and most recently about the repeat presidential election.

On Saturday, the Nation asked Mr Mboya to explain what pushes him to initiate such cases.

“My philosophy is anchored on Article 3 of the Constitution of Kenya: Every person has an obligation to respect, uphold and defend the Constitution,” he said.

Asked whether he would be happy being called a perennial petitioner, he replied: “I’m not. I am a public interest litigator.”


His most recent petition to the Judicial Service Commission calls on the probe of Supreme Court judge Njoki Ndung’u because of the wording of her dissenting opinion delivered when the court nullified the re-election of President Uhuru Kenyatta on September 1.

In the case on the October 26 repeat poll, Mr Mboya wrote to the IEBC two days before the election, asking for President Kenyatta’s disqualification because the latter had “broken the law” by launching the Kenya Government Delivery Portal.

This was after a finding by High Court judge Chacha Mwita that the use of the portal to advertise the government’s achievements over the past four years was unlawful.

Still around the presidential contest, one Kenneth Otieno is also claiming a space in the prolific petitioners’ charts.


He is an official of the International Policy Group alongside Martin Nkari.

Few days to the repeat polls, Mr Otieno and Mr Nkari wrote to the International Criminal Court through a Canadian law firm, asking the court’s chief prosecutor Fatou Bensouda to investigate Mr Odinga and his co-principal Kalonzo Musyoka because of chaos witnessed in major towns during protests aimed at pushing for reforms at the IEBC.

Mr Nkari in April filed a case at the High Court to challenge changes that were made to the election law following bi-partisan negotiations.

In February, the same Mr Nkari through his NGO filed a petition at the National Assembly seeking that Auditor-General Edward Ouko be investigated for allegedly failing to comply with procurement laws.


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