Plot Thickens.....Another Petition To Set Aside Today's Judgement

Hydra

Village Elder
#1
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
PETITION NO. 1 OF 2017​

(In the Matter of an application for Review and Setting Aside of the Judgement of the Suprme Court made on 1st September 2017, at Nairobi (Maraga CJ; Mwilu DCJ, , Lenaola, Wanjala, & Ojwang and Njoki Ndungu SCJJ in Petition No. 1 of 2017)
BY
MICHAEL WAINAINA MWAURA.............................................................. APPPLICANT
Versus
RAILA AMOLLO ODINGA..............................…....1ST RESPONDENT
STEPHEN KALONZO MUSYOKA............ 2ND RESPONDENT
H.E UHURU MUIGAI KENYATTA.. 3RD RESPONDENT
THE INDEPENDENT ELECTORAL ANDBOUNDARIES COMMISSION IEBC,4TH RESPONDENT
CHAIRPERSON, INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION.......….….. .……5TH RESPONDENT
THE HONOURABLE ATTORNEY GENERAL.........6TH RESPONDENT
THE LAW SOCIETY OF KENYA.7TH RESPONDENT
EKURU AUKOT.…....8TH RESPONDENT​

CERTIFICATE OF URGENCY​

I, JOHN HARRISON KINYANJUI, an Advocate of this Honourable Court and of the High Court of Kenya, on record for the Applicant herein, MICHAEL WAINAINA MWAURA, do hereby certify that the application filed herewith dated 19th September 2017 is extremely urgent and ought to be heard at the earliest instance and on a priority basis for the following reasons:-

An extremely exceptional circumstance has since the making of the majority Judgement on 1st September 2017 now arisen and disclosed in the public domain as of this 19th September 2017 via the Standard newspaper of this 19th September 2017 negatively implicating the entire decision, and calling for its review;

to wit, the integrity of the entire majority decision arising from allegations of impropriety, possible corruption, and violation of the Judicial Code of Ethics by 2 of the Judges (Hon. Mr. Justice Isaac Lenaola and Hon. Lady Justice Philomena Mwilu), who sat to hear and adjudicate upon the subject Petition, as part of the Supreme Court Bench which rendered a majority decision to grant the Petition No. 1 of 2017.

The integrity and transparency of the Supreme Court in determining the Petition herein and the Supreme Courts upholding of the Principles of Rule of Law, Justice, Transparency, Good Governance, Impartiality, Patriotism and Fairness has hence fallen into grave doubt, arising from imputations of impropriety on the part of the said Hon. Mr. Justice Lenaola and Lady Justice Philomena Mwilu.

Pursuant to Article 10(2)(c) and Article 258(1) of the Constitution, the Applicant challenges the lawfulness, propriety, integrity, and fairness of the consequential MAJORITY Judgement of this Honourable Court determined by the majority in favour of the 1st and 2nd Respondents, on 1st September 2017, against the backdrop of the stated improprieties.

The Judicial Policy espoused in Article 159(2)(a) of the Constitution is that Justice shall be done to all, embodying the equal principle that Justice must not only be done but also BE SEEN to be done.

The net effect of the impropriety complained of is that the hearing of the Petition No. 1 of 2017 was an entire sham, a violation of Article 1, 48, and 159(1) of the Constitution, as the outcome had been pre-determined and the hearing and consequential actions were mere theatrics intended to cloak the improper decision with legality.

The principle that Justice must not only be done but also be SEEN to be done was irredeemably infringed upon the recent disclosure of the inappropriate interaction between the Hon. Mr. Justice Lenaola and Hon. Lady Justice Mwilu with the stated emissaries of the 1st and 2nd Respondents herein, prior to the delivery of the impugned decision, touching on abuse of office, unfairness, and corruption allegations, and which apparently were solely for purposes of influencing the outcome of the said Petition herein in which he (Raila Amollo Odinga) stood to derive the benefit of the unlawful annulment of the August 8th 2017 Presidential election fairly and squarely won on a majority of votes cast.

The imputations of corrupt and unlawful interactions of the 2 Judges with the Petitioners, and/or the Petitioners Advocates and/or emissaries by the Hon. Mr. Justice Lenaola and Hon. Lady Justice Mwilu as reported in the public domain (the Standard, September 19th 2017) to influence the outcome of the Petition herein in favour of the said 1st Respondent lends the impression that Justice before the Supreme Court in relation to the Petition herein was peddled for corrupt and undue influence, and was for sale, and indeed was sold to the 1st Respondent herein, to the detriment of the Applicant who made a fair presentation before the Supreme Court.

The impugned decision carried the contribution of the Hon. Mr. Justice Lenaola and Hon. Lady Justice Mwilu which unfairly regarded the Applicants case under consideration resulting in real danger of prejudice, and gross miscarriage of Justice by the rest of the Judges who formed a majority, hence the Judgement ought to be forthwith vacated.

The Hon. Mr. Justice Lenaolas and Hon. Lady Justice Mwilus respective contributions to the final impugned majority Judgement and their specific parts thereof penned by them (if at all), cannot be excised from the rest of the majority and impugned Judgement, and the same is fatally defective in toto to that extent.

Justice cannot be said to have BEEN SEEN to have been done to the Applicant or the Respondents against such a dark cloud of the stated impropriety, undue influence, influence peddling, and corruption allegations.

The subject matter is of grave public importance touching on the Administration of Justice, and the fair adjudication of the Petition herein involving an election in which over 15 Million Kenyans stood in the open, queued, and cast their votes to elect their Presidential candidate, including the Applicant.

The Motion herein annexed has been made expeditiously upon the revelation in the public domain of the inappropriate interaction between the said Judges of the Supreme Court and the 1st and 2nd Respondent (and/or these Respondents emissaries), pertaining to these proceedings.

In the face of the 2 Petitions filed with the Judicial Service Commission in regard to the 2 respective Judges of this Court Hon. Mr. Justice Lenaolas and Hon. Lady Justice Mwilus of impropriety and inducement from the 1st Respondent to promote, assist, and aid in the rendering of a favourable decision by a majority of the Supreme Court Judges in regard to the said 1st Respondent, the appearance of bias has hovered, and now remains undischarged over the entire decision.

It ought to be vacated in toto, neither can it be regarded anymore as a majority decision capable of sustenance.

The Applicant relies on the English Supreme Court (hitherto the House of Lords) precedent via the Pinochet case, wherein the Supreme Court of England has held:

The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications.

First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause.

In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification.

The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party.

This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias.

The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure. This was held to be "automatic disqualification."

Following this precedent (and others invoking the Pinochet decision worldwide), this Court cannot leave the Judgement of September 1st 2017 herein issued standing. It must be vacated.

Jurisdiction is conferred to grant the Orders herein sought.

It is in the interest of Justice and in furtherance of Article 259(1)(c) and (d) of the Constitution that this matter is fully heard and determined expeditiously.

DATED AT NAIROBI THIS 19TH DAY OF SEPTEMBER 2017

JOHN HARRISON KINYANJUI
ADVOCATE FOR MICHAEL WAINAINA MWAURA
THE APPLICANT

DRAWN & FILED BY:
J. HARRISON KINYANJUI & CO. ADVOCATES
ST. ELLIS HOUSE, 4TH FLOOR, SUITE 416,
P.O. BOX 10024-00100 WABERA STREET,
NAIROBI
Email: greatharrison@yahoo.com
Tel: 0734 733 659
 

Chinese

Senior Villager
#3
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
PETITION NO. 1 OF 2017​

(In the Matter of an application for Review and Setting Aside of the Judgement of the Suprme Court made on 1st September 2017, at Nairobi (Maraga CJ; Mwilu DCJ, , Lenaola, Wanjala, & Ojwang and Njoki Ndungu SCJJ in Petition No. 1 of 2017)
BY
MICHAEL WAINAINA MWAURA.............................................................. APPPLICANT
Versus
RAILA AMOLLO ODINGA..............................…....1ST RESPONDENT
STEPHEN KALONZO MUSYOKA............ 2ND RESPONDENT
H.E UHURU MUIGAI KENYATTA.. 3RD RESPONDENT
THE INDEPENDENT ELECTORAL ANDBOUNDARIES COMMISSION IEBC,4TH RESPONDENT
CHAIRPERSON, INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION.......….….. .……5TH RESPONDENT
THE HONOURABLE ATTORNEY GENERAL.........6TH RESPONDENT
THE LAW SOCIETY OF KENYA.7TH RESPONDENT
EKURU AUKOT.…....8TH RESPONDENT​

CERTIFICATE OF URGENCY​

I, JOHN HARRISON KINYANJUI, an Advocate of this Honourable Court and of the High Court of Kenya, on record for the Applicant herein, MICHAEL WAINAINA MWAURA, do hereby certify that the application filed herewith dated 19th September 2017 is extremely urgent and ought to be heard at the earliest instance and on a priority basis for the following reasons:-

An extremely exceptional circumstance has since the making of the majority Judgement on 1st September 2017 now arisen and disclosed in the public domain as of this 19th September 2017 via the Standard newspaper of this 19th September 2017 negatively implicating the entire decision, and calling for its review;

to wit, the integrity of the entire majority decision arising from allegations of impropriety, possible corruption, and violation of the Judicial Code of Ethics by 2 of the Judges (Hon. Mr. Justice Isaac Lenaola and Hon. Lady Justice Philomena Mwilu), who sat to hear and adjudicate upon the subject Petition, as part of the Supreme Court Bench which rendered a majority decision to grant the Petition No. 1 of 2017.

The integrity and transparency of the Supreme Court in determining the Petition herein and the Supreme Courts upholding of the Principles of Rule of Law, Justice, Transparency, Good Governance, Impartiality, Patriotism and Fairness has hence fallen into grave doubt, arising from imputations of impropriety on the part of the said Hon. Mr. Justice Lenaola and Lady Justice Philomena Mwilu.

Pursuant to Article 10(2)(c) and Article 258(1) of the Constitution, the Applicant challenges the lawfulness, propriety, integrity, and fairness of the consequential MAJORITY Judgement of this Honourable Court determined by the majority in favour of the 1st and 2nd Respondents, on 1st September 2017, against the backdrop of the stated improprieties.

The Judicial Policy espoused in Article 159(2)(a) of the Constitution is that Justice shall be done to all, embodying the equal principle that Justice must not only be done but also BE SEEN to be done.

The net effect of the impropriety complained of is that the hearing of the Petition No. 1 of 2017 was an entire sham, a violation of Article 1, 48, and 159(1) of the Constitution, as the outcome had been pre-determined and the hearing and consequential actions were mere theatrics intended to cloak the improper decision with legality.

The principle that Justice must not only be done but also be SEEN to be done was irredeemably infringed upon the recent disclosure of the inappropriate interaction between the Hon. Mr. Justice Lenaola and Hon. Lady Justice Mwilu with the stated emissaries of the 1st and 2nd Respondents herein, prior to the delivery of the impugned decision, touching on abuse of office, unfairness, and corruption allegations, and which apparently were solely for purposes of influencing the outcome of the said Petition herein in which he (Raila Amollo Odinga) stood to derive the benefit of the unlawful annulment of the August 8th 2017 Presidential election fairly and squarely won on a majority of votes cast.

The imputations of corrupt and unlawful interactions of the 2 Judges with the Petitioners, and/or the Petitioners Advocates and/or emissaries by the Hon. Mr. Justice Lenaola and Hon. Lady Justice Mwilu as reported in the public domain (the Standard, September 19th 2017) to influence the outcome of the Petition herein in favour of the said 1st Respondent lends the impression that Justice before the Supreme Court in relation to the Petition herein was peddled for corrupt and undue influence, and was for sale, and indeed was sold to the 1st Respondent herein, to the detriment of the Applicant who made a fair presentation before the Supreme Court.

The impugned decision carried the contribution of the Hon. Mr. Justice Lenaola and Hon. Lady Justice Mwilu which unfairly regarded the Applicants case under consideration resulting in real danger of prejudice, and gross miscarriage of Justice by the rest of the Judges who formed a majority, hence the Judgement ought to be forthwith vacated.

The Hon. Mr. Justice Lenaolas and Hon. Lady Justice Mwilus respective contributions to the final impugned majority Judgement and their specific parts thereof penned by them (if at all), cannot be excised from the rest of the majority and impugned Judgement, and the same is fatally defective in toto to that extent.

Justice cannot be said to have BEEN SEEN to have been done to the Applicant or the Respondents against such a dark cloud of the stated impropriety, undue influence, influence peddling, and corruption allegations.

The subject matter is of grave public importance touching on the Administration of Justice, and the fair adjudication of the Petition herein involving an election in which over 15 Million Kenyans stood in the open, queued, and cast their votes to elect their Presidential candidate, including the Applicant.

The Motion herein annexed has been made expeditiously upon the revelation in the public domain of the inappropriate interaction between the said Judges of the Supreme Court and the 1st and 2nd Respondent (and/or these Respondents emissaries), pertaining to these proceedings.

In the face of the 2 Petitions filed with the Judicial Service Commission in regard to the 2 respective Judges of this Court Hon. Mr. Justice Lenaolas and Hon. Lady Justice Mwilus of impropriety and inducement from the 1st Respondent to promote, assist, and aid in the rendering of a favourable decision by a majority of the Supreme Court Judges in regard to the said 1st Respondent, the appearance of bias has hovered, and now remains undischarged over the entire decision.

It ought to be vacated in toto, neither can it be regarded anymore as a majority decision capable of sustenance.

The Applicant relies on the English Supreme Court (hitherto the House of Lords) precedent via the Pinochet case, wherein the Supreme Court of England has held:

The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications.

First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause.

In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification.

The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party.

This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias.

The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure. This was held to be "automatic disqualification."

Following this precedent (and others invoking the Pinochet decision worldwide), this Court cannot leave the Judgement of September 1st 2017 herein issued standing. It must be vacated.

Jurisdiction is conferred to grant the Orders herein sought.

It is in the interest of Justice and in furtherance of Article 259(1)(c) and (d) of the Constitution that this matter is fully heard and determined expeditiously.

DATED AT NAIROBI THIS 19TH DAY OF SEPTEMBER 2017

JOHN HARRISON KINYANJUI
ADVOCATE FOR MICHAEL WAINAINA MWAURA
THE APPLICANT

DRAWN & FILED BY:
J. HARRISON KINYANJUI & CO. ADVOCATES
ST. ELLIS HOUSE, 4TH FLOOR, SUITE 416,
P.O. BOX 10024-00100 WABERA STREET,
NAIROBI
Email: greatharrison@yahoo.com
Tel: 0734 733 659
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