A heated debate emerged among renowned lawyers on social media on whether the Supreme Court has powers to declare a presidential election winner in case of a successful petition.
Kenyans.co.ke sought a legal clarification from lawyers to understand whether the highest court in the country can exercise such power should a petitioner succeed.
According to renowned lawyer and Senior Counsel Charles Kanjama, any court in the country has powers to declare an election winner in a disputed election if arithmetic errors are found.
"That is possible for Supreme Court and any other court in the country to declare a winner in any disputed election," Kanjama stated.
With the presidential petition attracting global attention, Kanjama stated that only the Supreme Court can make such a declaration in this case.
"It is possible. Supreme Court only does a presidential election petition but a recount or a retally will have to be done to determine if errors were made."
This is, however, a rare case with Kanjama arguing that such petitions always result to a repeat election but where it is obvious an arithmetic error has been made.
"A court did that in a previous election cycle in Mathare where a declaration of a winner was done but there was a miscounting of votes. It can happen but it is rare," Kanjama added.
According to Elections Act 2011, powers of election court mandates Supreme Court to declare a winner should it call for a recount.
Section 80 of Election Act 2011 states that an election court may by order direct the Commission to issue a certificate of election to a President, a Member of Parliament or a Member of a County Assembly if upon recount of the ballots cast, the winner is apparent; and that winner is found not to have committed an election offence.
Lawyers from both Azimio and Kenya Kwanza coalitions had been caught in a heated exchange on whether the Apex court has powers to declare a presidential election winner in case of a petition.
Gladys Shollei, a lawyer and a Woman Representative - Uasin Gishu County, slammed her fellow lawyer Donald Kipkorir for misquoting the law that the Supreme Court has powers to make such a declaration.
"Ignore the misinformation and lies. The law is crystal clear," Shollei stated.
In a response, Kipkorir slammed Shollei for misleading Kenyans on the power vested upon the court to determine who is the winner in case of re-count.
"My dear friend and classmate, you passed this law yourself. The constitution is given effect through legislation. You told us the Supreme Court sitting as Election Court can tally votes and issue certificate to the winning President. Are you disowning the law you passed?" Kipkorir questioned.
