Kenya poll petition: Court settles row on who IEBC lawyer is

The Supreme Court of Kenya has dismissed responses filed on behalf of the electoral agency by four commissioners led by vice chair Juliana Cherera, delivering an early win for chair Wafula Chebukati. 

Speaking Tuesday during the second session of the 2022 presidential election petition pretrial conference at the Milimani Law Courts, Deputy Chief Justice Philomena Mwilu said the court will take former Attorney-General Prof Githu Muigai, who is representing the Chebukati faction, to be the lawyer representing the Independent Electoral and Boundaries Commission (IEBC) in the matter.

The Juliana Cherera-led faction had fronted Senior Counsel Paul Muite as the IEBC’s lawyer. 

But in the afternoon, the court delivered a blow to the four commissioners – Ms Cherera, Ms Irene Masit, Mr Justus Nyang'aya and Mr Francis Wanderi – while clarifying that they are free to retain the services of Mr Muite and Issa Mansur for the duration of the case. 

In the morning session, both lawyers had asserted that they represent IEBC in the presidential petition filed by Azimio presidential candidate Raila Odinga.

The Cherera-led faction had filed a response on behalf of the IEBC that called for a nullification of the presidential election results that declared William Ruto the President-elect.

In an initial reading of the court’s decision, DCJ Mwilu had asked the electoral agency's warring commissioners to resolve their internal wrangles outside the court. Ms Mwilu had said the court would not wade into the matter of deciding which lawyer will represent the IEBC.

“This court cannot deal with the issue or any dispute as to the legal representation of the IEBC. It is not the business of the court to determine who represents the IEBC,” she said.

“That is an internal issue that must be resolved by the IEBC internally,” the deputy CJ added. 

However, moments later, she walked back on the order and asked those in court to ignore what she'd just said. She then issued the court’s decision that Prof Muigai would be recognised as the electoral agency’s lawyer. 

Deepening wrangles

IEBC is deeply divided, with two sides emerging since Mr Chebukati declared William Ruto the President-elect. The first is the chair’s faction consisting of Prof Abdi Guliye, Mr Boya Molu and CEO Marjan Hussein Marjan, while the second consists of Ms Cherera, Ms Irene Masit, Mr Justus Nyang'aya and Mr Francis Wanderi. 

The second faction, which disowned the presidential election results, had also sought to have its own representation at the Supreme Court led by Mr Muite.