This will be a 3rd presidential petition for two Supreme Court judges

From left: Supreme Court Judges Isaac Lenaola, Smokin Wanjala, Philomena Mwilu, Martha Koome, Mohamed Ibrahim, Njoki Ndung'u and William Ouko. [File, Standard]

Two Supreme Court judges will be hearing the third presidential election petition in their career as judges of the apex court.

They are Justices Smokin Wanjala and Njoki Ndung'u.

The duo heard petitions filed in 2013 and 2017. The 2022 petition, which follows the August 9 presidential polls, will be third in their stint at the Supreme Court.

Justice Mohamed Ibrahim, who had been lined up to hear the 2017 petition, was unable to because of an ailment.

In all the three occasions, Raila Odinga has been the petitioner, with the IEBC and its chairperson listed as the respondents.

In the three petitions, Odinga has alleged electoral malpractices that led to him losing the presidential election.

He, in his petitions, accused the Independent Electoral and Boundaries Commission (IEBC) of bungling the elections, and announcing results that, according to him, did not reflect the will of the Kenyan people.

This year's petition, which Odinga is disputing William Ruto's win in the August 9 presidential election, will be heard from Monday, August 29 and a verdict issued on Monday, September 5.

2013

In 2013, Raila Odinga of ODM disputed the presidential results announced by then-chairperson of IEBC Issack Hassan.

Hassan said Odinga's main competitor, Uhuru Kenyatta, had received 6,173,433 votes (50.07 per cent) to be declared the winner. Odinga, who was the first runner-up, got 5,340,546 votes (43.31 per cent).

In his suit challenging the March 4, 2013 results, Odinga argued that technological failures marred IEBC's election results. He also argued that the breakdown of biometric voter registration (BVR) kits affected the credibility of the election.

Judges Willy Mutunga (Chief Justice), Mohamed Ibrahim, Njoki Ndung'u, Smokin Wanjala, Jackton Ojwang and Philip Tunoi unanimously upheld Kenyatta's win, cementing the then-TNA candidate's victory in the elections.

The judges were six in number - and not seven - because the then-Deputy Chief Justice, Nancy Baraza, had exited the Supreme Court prematurely for allegedly pinching a security guard's nose, which amounted to inappropriate public conduct.

2017

In the August 8, 2017 General Election, Raila Odinga filed a suit at the Supreme Court alleging that the IEBC bungled the election by failing to follow the legal procedure to declare Uhuru Kenyatta the winner.

Odinga, who ran on ODM ticket, argued that IEBC chairperson Wafula Chebukati, who was eight months into the job, went ahead to declare Jubilee candidate, Kenyatta, the winner without physically receiving all Forms 34A, which was against the law. Odinga also argued that the transmission of election results was flawed.

Four judges found his arguments valid, resulting in the nullification of the presidential results.

The four judges were David Maraga (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Smokin Wanjala and Isaac Lenaola.

Two dissenting judges, Njoki Ndung'u and Jackton Ojwang, ruled that the IEBC followed the law in declaring Kenyatta the winner of the presidential election.

Justice Mohamed Ibrahim, who had been lined up as one of the seven Supreme Court judges, did not hear the matter because he was unwell.

Justice Tunoi, who heard the 2013 presidential petition, had retired and was replaced by Lenaola.

Kenyatta had, in 2017, been announced the winner with 8,223,369 votes against Odinga's 6,822,812 votes.

In the consequent repeat election held on October 26, 2017, Odinga boycotted the polls, leading to a Kenyatta victory. The incumbent got 7,483,895 votes to be declared the winner.

2022

In the recent August 9, 2022 presidential election, the IEBC declared William Ruto of UDA the president-elect with 7,176,141 votes (50.49 per cent) of the votes against Odinga's 6,942,930 votes (48.85 per cent).

Odinga, in the petition which will be heard starting August 29, 2022, argues that the IEBC declared Ruto the winner in the presidential race without tallying Forms 34B from at least 25 constituencies.

Odinga further argues that some 140,000 voters, who cast their ballots through manual means, were not incorporated in the final tally.

The Azimio la Umoja leader also argues that some of his votes in Bomet and Kiambu counties were reduced and those of William Ruto added unprocedurally.

The case will be heard by Martha Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola, Mohamed Ibrahim and William Ouko.

Koome and Ouko are the latest addition to the Supreme Court.

Koome replaced retired Chief Justice David Maraga, while Ouko replaced retired judge Jackton Ojwang.

The 2022 election petition will be a second one for Mwilu (2017 and 2022), Ibrahim (2013 and 2022) and Lenaola (2017 and 2022).

It will, however, be a first for former Court of Appeal judges Koome and Ouko.

Justices Njoki Ndung'u and Smokin Wanjala will be hearing their third presidential petition (2013, 2017 and 2022).