The Kenya Kwanza flag bear Deputy President William Ruto and his running mate Rigathi Gachagua moved to court on Friday, August 12 to block a petition seeking to bar them from office should they be declared winners of August 9 presidential election.
Through lawyer Elius Mutuma, the duo argued the case prevents them from "doctrine of exhaustion" with regards to the avenues of recourse available on rules of procedure on settlement of disputes.
This comes on the backdrop of the ongoing vote count at the Bomas of Kenya, a National Tallying Centre of the Independent Electoral and Boundaries Commission (IEBC).
"The suit herein is incompetent and incurably defective both in form and in substance and is therefore untenable," reads the court papers.
Constitutional Petition 169 of 2020 states that the question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself.
The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.
"This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR," reads the law in part.
Eleven petitioners had moved to court on August 8 on grounds that both DP Ruto and Gachagua did not merit to hold two most powerful offices in the country in what they termed as lack of integrity virtue in Chapter 6 of the Constitution.
They all want the duo blocked from ascending to power if declared winners by the IEBC Chairman Wafula Chebukati.
The petition was filed under certificate of urgency and want the Supreme Court to give directions by Friday, August 26. The Kenyan Constitution mandates IEBC to declare presidential winner after the election within seven days from the day of election.
"That pending hearing and determination of this Petition, the honourable Court be pleased to issue an order conservatory injunction to restrain the first and second respondents from being sworn into offices of President and Deputy President respectively in the event that they get elected during the General Election scheduled for August 9, 2022," the petition reads in part.
Respondents who were listed in the petition are three of Kenya Kwanza's main rivals in the race - Roots Party Kenya, Agano party, Azimio and the Ethics and Anti-Corruption Commission of Kenya (EACC).
