A case seeking to stop Deputy President William Ruto and his running mate Rigathi Gachagua from being sworn into their respective electoral offices should they win in the presidential election has been forwarded to the Deputy Chief Justice for appointment of judges to hear and determine the matter.
The Supreme Court Registrar, Bernard Kasavuli, on Friday, August 12, 2022, made the directive and informed the lawyers in the suit lodged by eleven petitioners that the hearing date of the suit will be communicated once DCJ Philomena Mwilu empanels the bench.
"The file is referred to the Deputy Chief Justice to constitute a bench for hearing and determination of the application on record. Once the decision of the court is made, parties will be notified on the same, "Kasavuli said.
The registrar further stated that the parties will also be informed on the ruling date by the bench of the application seeking a conservatory order to bar the two politicians from ascending to power if declared winners by the Independent Electoral and Boundaries Commission (IEBC) once the vote tallying is complete due to integrity issues.
The directions by the Supreme Court come after the petitioners led by Kenneth Njagi Njiru, Meshach Suba Church, Jackson Mwalulu and Beatrice Kamau filed the suit on Sunday, August 7, 2022, seeking the anti-swearing in order for the two United Democratic Alliance’s party presidential candidates
While opposing the issuance of the conservatory orders, Ruto and Gachagua through UDA party informed the Supreme Court that the orders would not serve any useful purpose as no one has been declared president-elect as of yet.
The party has also asked Apex Court to strike out the case filed by petitioners as the same is bad in law and an outright abuse of the court process.
"Both the Petition and Notice of Motion application fail the test of justiciability and ripeness at the petitioners are inviting the court to embark on a speculative venture which is a waste of precious and scarce judicial time.
"The issues sought to be canvassed through the instant petition have also been presented to the High Court by the same petitioners. They are engaging in a horrendous forum shopping venture," UDA says through lawyer Elias Mutuma.
In the lawsuit, the petitioners through lawyer Kibe Mungai argue that unless the court has determined the constitutionality of the registration and gazettement of the Ruto and Gachagua as candidates, it would amount to aiding and abetting illegalities if any of the candidates are sworn into office.
"Given provisions of Chapter Six of the Constitution, swearing in of Ruto and Gachagua will constitute a ‘fragrant violation’ of Articles 3,4 and 10 of the Constitution," Kibe argues.
The petitioners seek to safeguard the principles, values and objectives enshrined in Chapter Six of the 2010 promulgated constitution.
"Ruto has nominated Gachagua to be his running mate despite heavy baggage of criminality on his shoulders, " the petitioners state in their court papers.
“Kenya is facing a real spectre that a government, which is non-compliant with the Constitution, particularly Chapter Six of Leadership and Integrity, might be established after the General Election in the event that the UDA’s presidential candidates emerge victorious,” says the petitioners.
They also base their argument on a holding by the Supreme Court and the Court of Appeal rendered in former Kiambu Governor Ferdinand Waititu's case that “access to public office by an elected official is not an absolute right and the same may be restricted in order to safeguard the public interest.”
In the case, they have named the UDA party, which is led by Deputy President Ruto, as the third respondent in the case.
Other respondents include the electoral commission and its chairman Wafula Chebukati and Attorney General while Azimio la Umoja - One Kenya coalition, Agano Party, Roots Party Kenya and the Ethics and Anti-Corruption Commission of Kenya (EACC) have been listed as interested parties.