Lack of Supreme Court quorum not accidental, Oct. 26 poll illegal: Orengo

The National Super Alliance (NASA) lead counsel James Orengo claims that a lack of quorum by Supreme Court judges was not accidental, but a well-orchestrated scheme to ensure that the hearing of a case filed by three voters seeking to stop the October 26 repeat presidential poll, does not take place.

On Wednesday, the CJ appeared solely in Supreme Court, saying the hearing could not proceed as earlier scheduled, given there was no quorum among Supreme Court judges.

“Regrettably, and with due apologies to all the parties, this matter cannot proceed to hearing this morning,” said CJ Maraga.

“Following the events of last night which are in the public domain, the Hon the Deputy CJ and deputy president of the court is not in the position to come to court. The Hon. Justice Ibrahim is unwell and is out the country for treatment. Hon. Justices Ojwang and Wanjala are not able to come to court. The Hon. Justice Njoki Ndung’u is out of Nairobi and has been unable to get a flight back in time for the hearing of this matter. That leaves Justice Lenaolgazetta and I as only judges present. As the two of us cannot form a quorum under Article 163(2) of the Constitution, this matter cannot therefore be heard this morning. It’s accordingly adjourned to a date to be taken in the registry,” said Maraga.


Siaya Senator James Orengo now claims the lack of a threshold in court was intentional, and Government had a hand in ensuring that hearing does not take place.

“To our surprise, the Chief Justice could not mobilize a quorum. I think the lack of a quorum on the part of the Supreme Court is not by coincidence or by accident. The gazettement of the 25th of October as a National Holiday was part of the design to make sure that these proceedings would not take place. But, when the Chief Justice made the order that the proceedings would continue, anyway, there was an attempt on the life of the Deputy Chief Justice, Philomena Mwilu. She was not here this morning, which means the events of last night must have traumatized her,” said Orengo.

“The dissenting judges in the petition that we earlier had, in relation to the presidential election – Justices Njoki Ngung’u and Jackton Ojwang –, were not available. All in all, there is an attempt to undermine the authority of the institutions of the Government, including independent institutions like the electoral commission and the Supreme Court.”

Voters Khalef Khalifa, Samuel Mohochi and Gacheke Gachuhi claim the IEBC is divided and cannot guarantee a fair and credible election. On Tuesday, Chief Justice David Maraga certified the application as urgent and directed it be heard on Wednesday at 10am despite it being a public holiday.


The Nasa mandarin maintains the IEBC is being disingenuous by claiming it is ready to conduct the repeat poll, yet a High Court had earlier stated that the process followed by the IEBC in gazetting the 290 constituency returning officers was “illegal”, hence the R.Os are not “legally competent” to preside over the poll.

“The High Court has this morning given a judgement that the appointment of all the Constituency Returning Officers and their deputies is illegal. This means, as we speak now, there are no legally competent persons who can preside over the presidential election in the 291 constituencies, including the Diaspora,” said Orengo.

“If the Commission dares proceed with the election tomorrow, it will be an illegality as initial because of lack of competence. Presidential elections are held at the constituency level, and there will be no competent constituency returning officer in the October 26 poll. As Nasa lawyers, we are telling all constitutional bodies and organs; and now the electoral commission, what is left of it, may be illegal and unconstitutional to move ahead with the elections tomorrow.”


The Siaya Senator maintained that Odinga will not take part in the October 26 presidential poll.

“Our candidate has withdrawn and Nasa, as a coalition, will not take part in a bogus election,” he said.

Orengo claims IEBC Chairman, Wafula Chebukati, is besieged by other commissioners and the appointment of Commission’s Vice Chair, Connie Maina Nkatha, as the Deputy Nationa Returning Officer, is suspect.

“The IEBC is operating without the input of a Chairman. Mr Chebukati has become a passenger in the Commission. And we have read the affidavit sworn by the Vice Chairman of the IEBC, Connie Nkatha, who purports to be the Deputy National Returning Officer, which is illegal in itself. The first Constitutional bodies that have been disabled by way of conduct by the Jubilee Government and the Party is the electoral commission itself. It is evident that what is left of the electoral commission is an agency not capable in law and the Constitution to run the election,” said Orengo.

The Siaya Senator maintained that a rally organised by the Nasa leadership will take place in Nairobi’s Uhuru Park at 2pm Wednesday, when Odinga will announce “the way forward” for his supporters.


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