The court yesterday admitted for hearing an application by
11 activists seeking to bar the swearing-in of Dr Ruto and Mr Gachagua in the
event that the electoral commission declares them winners of presidential
election.
DP Ruto and his running mate are, however, fighting for the
dismissal of the case.
When the case was called out for mention yesterday, the
apex court's deputy registrar Bernard Kasavuli said the file will be placed
before Deputy Chief Justice Philomena Mwilu for appointment of a five-judge
bench to determine the activists' bid.
Mr Kasavuli said the parties in the suit will later be
informed about the decision of the court on the request by the activists .
"The file to be placed before the Deputy Chief Justice
for empanellment of a bench to hear and determine the application on record.
Parties to be informed when the ruling will be delivered," stated Mr
Kasavuli
The yet-to-appointed bench will also listen to the
objections raised by the electoral commission, Dr Ruto, Mr Gachagua and United
Democratic Alliance (UDA) party .
The Independent Electoral and Boundaries Commission (IEBC),
together with its chairman Wafula Chebukati, in a joint response to the suit,
said the apex court does not have the powers to deal with the issues raised by
activists regarding eligibility of Ruto-Gachagua ticket due to integrity issues
on the latter.
DP Ruto, Mr Gachagua and their party UDA in a separate
joint response said the court does not only lack the powers to hear the case
but also that the suit is "incompetent and incurably defective both in
form and in substance and is therefore untenable".
"The petition is an abuse of the court process and it
amounts to forum shopping in that the petitioners have filed a similar petition
at the High Court constitutional division where they are seeking similar orders
and based on the same set of facts," lawyer Elias Mutuma for UDA, Dr Ruto
and Mr Gachagua said. He argued that the activists prematurely and wrongly
invoked the authority of the Supreme Court to hear and determine constitutional
matters.
"This court can only sit as a court of first instance
in such a matter pursuant to the provisions of Article 140 of the constitution
(questions as to validity of presidential election). This matter offends the
doctrine of exhaustion as regards the avenues of recourse available in the
constitution, the Elections Act and IEBC's rules of procedure on settlement of
disputes," said Mr Mutuma.
Since the gist of the suit is the eligibility of Mr
Gachagua due to a recent High Court judgment that allowed the state to seize
his Sh202 million alleged dirty cash and an ongoing graft case, Mr Mutuma said
the cases are still pending in court.
The activists claim that Mr Gachagua is unsuitable to hold
office and that the decision of Dr Ruto to nominate him as running mate was
invalid and consequently that their participation in the presidential polls was
illegal.
"There exists no basis for the court to issue the
orders (sought) since the criminal matters relied upon in support of the
application are still pending in court," said Mr Mutuma.
He added that the suit is a pre-election dispute and has
been overtaken by events since elections already took place on August 9 and are
only awaiting conclusion of the tallying process, announcement of the results
and gazettement of the winning candidates. Nation
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