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PETITION To: the Honourable High Court of Kenya, Nairobi

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PETITION To: the Honourable High Court of Kenya, Nairobi REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI CONSTITUTIONAL PETITION NO. OF 2017 IN THE MATTER OF ARTICLE 1, 2, 3, 10, 19, 20, 23, 258 AND 259 OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 1, 27, 38 AND 50 OF THE CONSTITUTION OF KENYA. AND IN THE MATTER OF THE FRESH PRESIDENTIAL ELECTIONS UNDER AND PURSUANT TO ARTICLES 138 AND 140(2) OF THE CONSTITUTION AND IN THE MATTER OF THE FRESH PRESIDENTIAL ELECTIONS SCHEDULED TO BE HELD ON 26TH OCTOBER, 2017 PURSUANT TO ARTICLE 140 OF THE CONSTITUTION BETWEEN HON. DAVID PKOSING PETITIONER VS NATIONAL SUPPER ALLIANCE 1ST RESPONDENT ORANGE DEMOCRATIC MOVEMENT 3RD RESPONDENT WIPER DEMOCRATIC MOVEMENT - KENYA 3RD RESPONDENT FORD – KENYA PARTY 4TH RESPONDENT AMANI NATIONAL CONGRESS 5TH RESPONDENT HON. RAILA AMOLO ODINGA 6TH RESPONDENT HON. STEPHEN KALONZO MUSYOKA 7TH RESPONDENT HON. WYCLIFFE MUSALIA MUDAVADI 8TH RESPONDENT HON. MOSES MASIKA WETANGULA 9TH RESPONDENT INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION (IEBC) 10TH RESPONDENT WAFULA CHEBUKATI 11TH RESPONDENT REGISTRAR OF POLITICAL PARTIES 12TH RESPONDENT THE HON. ATTORNEY GENERAL 13TH RESPONDENT PETITION To: The HoNourable High Court of Kenya, Nairobi. 1 THE HUMBLE PETITION OF HON. DAVID PKOSING, MP WHOSE ADDRESS OF SERVICE FOR THE PURPOSE OF THIS PETITION IS CARE OF KINOTI & KIBE CO. ADVOCATES, QUEENSWAY HOUSE, 5TH FLOOR, KAUNDA STREET, P.O. BOX 29871-00202, NAIROBI IS AS FOLLOWS. 1 The Petitioner is the current Member of the National Assembly for Pokot South Constituency. 2 The First Respondent – National Supper Alliance – is a political coalition whose member includes the 2nd – 5th Respondents herein. Its address of service for purposes of this Petition is GPO, Nairobi. 3 The Second Respondent – Orange Democratic Movement – is a registered political party within the meaning of Article 91 of the Constitution. Its address of service for purposes of this Petition is care of Orange House, Menelik Road, Kilimani Area, P.O. Box 2478-00202, Nairobi. 4 The Third Respondent – Wiper Democratic Movement – Kenya – is a registered political party within the meaning of Article 91 of the Constitution. Its address of service for purposes of this Petition is care of ChuNgwa House, Othaya Road, P.O. Box 403-00100, Nairobi. 5 The Fourth Respondent – FORD–Kenya Party – is a registered political party within the meaning of Article 91 of the Constitution. Its address of service for purposes of this Petition is care of Kirkwood House, 2nd Floor, Kenyatta Market Off Mbagathi Way, Nairobi. 6 The Fifth Respondent – Amani National Congress – is a registered political party within the meaning of Article 91 of the Constitution. Its address of service for purposes of this Petition is care of Loyangalani, Off James Gichuru Road, LavingtoN, Nairobi. 7 The Sixth Respondent – Raila Amolo Odinga – is the party leader of ODM Party and is its presidential candidate during the fresh presidential election scheduled to be held on 26th October, 2017. His address of service for purposes of this Petition is care of Orange Democratic Movement, Orange House, Menelik Road, Kilimani Area, P.O. Box 2478-00202, Nairobi. 8 The Seventh Respondent – Stephen Kalonzo Musyoka – is the party leader of the 3rd Respondent herein. His address of service for purposes of this Petition is care of 2 Wiper Democratic Movement – Kenya, ChuNgwa House, Othaya Road, P.O. Box 403-00100, Nairobi. 9 The Eighth Respondent – Moses Masika Wetangula – is the party leader of the 4th Respondent herein. His address of service for purposes of this Petition is care of Kirkwood House, 2nd Floor, Kenyatta Market Off Mbagathi Way, Nairobi. 10 The Ninth Respondent – Wycliffe Musalia Mudavadi – is the party leader of the 5th Respondent herein. His address of service for purposes of this Petition is care of Amani NatioNal CoNgress, Loyangalani, Off James Gichuru Road, LavingtoN, Nairobi. 11 The Tenth Respondent – Independent Electoral and Boundaries Commission – is a Constitutional Commission established under Article 88 of the Constitution of Kenya 2010 for purposes of conducting and supervising Elections to any elective office as established under the Constitution. Its address of service for the purposes of this Election Petition shall be under the care of ANNiversary Towers, UNiversity Way and P.O Box 45371-00100, Nairobi. 12 The Eleventh Respondent – Wafula Chebukati - is the Chairman of the Independent Electoral and Boundaries Commission having been appointed as such pursuant to 250 of the Constitution. His address of service for purposes of this Petition is care of INdependent Electoral and BouNdaries CommissioN, ANNiversary Towers, UNiversity Way and P.O Box 45371-00100, Nairobi 13 The Twelveth Respondent – the Registrar of Political Parties – is the Registrar of Political Parties – is the registrar of Political Parties appointed under Section 33 of the Political Parties Act, 2011. Her address of service for purposes of this Petition is care of LioNs Place, KaruNa Close, Waiyaki Way, Westlands, P.O. Box 1131 – 00606, Nairobi. 14 The Thirteenth Respondent – the Honourable Attorney General – is the Legal Representative of the Government of the Republic of Kenya under Article 156 of the Constitution. His address of service for purposes of this Petition is care of Sheria House, Harambee Avenue, P. O. Box 40112-00100, Nairobi. 15 Pursuant to Articles 1, 2, 3, 4 and 10 of the Constitution, Kenya is a constitutional democracy based on the following principles, values and features:- i) Sovereign authority vests in the people of Kenya and it can be directly exercised through elections and referendum. 3 ii) Every five years – on the second Tuesday of August – a general election must be held in order for the people to exercise their sovereign power to elect the President, Members of Parliament, Governors, Senators and Members of the County Assemblies. iii) The exercise of the people’s sovereign power is conducted and supervised by the Independent Electoral and Boundaries Commission in accordance with the Constitution and national legislation. iv) Political parties are the bedrock of Kenyan democracy and they are bound by Article 91(1)(f) – (h) to, inter-alia:- . f) respect and promote human rights and fundamental freedoms, and gender equality and equity; g) promote the objects and principles of this Constitution and the rule of law; and h) subscribe to and observe the code of conduct for political parties. v) Further to the above under Article 91(2) of the Constitution Political Parties are prohibited from engaging in or encouraging violence by or intimidation of, its members, supporters, opponents or any other person. vi) The Constitution delegates to the courts the sovereign power of the people to adjudicate over all legal disputes, ensure justice is done to all and to protect and promote the purpose and principles of the Constitution. vii) Under Article 38 of the Constitution Kenyan citizens have a right to make political choices, right to free, fair and regular elections and the right to be a candidate for public office and, if elected, to hold office. 16 Under Article 88 of the Constitution the IEBC is established with responsibility for conducting or supervising referenda and elections to any elective body or office established by the Constitution and any other elections as prescribed by an Act of Parliament. 17 Article 88(5) provides as follows:- The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation. 18 Under Article 82 of the Constitution, Parliament is enjoined to enact legislation to provide, inter-alia, for the conduct of elections and referenda and the regulation and 4 efficient supervision of elections and referenda, including the nomination of candidates for elections. Significantly Article 82(2) requires such legislation to ensure that voting at every election is simple and transparent. 19 Pursuant to Article 82 of the Constitution in August, 2011 Parliament enacted the Elections Act 9No. 24 of 2011) to provide for the conduct of elections to the office of the President, the National Assembly, the Senate County governor and county assembly; to provide for the conduct of referenda, to provide for election dispute resolution and far connected purposes. In April, 2013 the first General Election under the Constitution of Kenya, 2010 was held under the provisions of the Elections Act, 2011. 20 In September, 2016 and January, 2017 the Elections Act, 2011 was substantially amended vide the Elections Laws (Amendment) Act, 2016 and The Elections Laws (Amendment) Act, 2017 to improve the electoral climate and secure better compliance with provisions of the Constitution. 21 The Petitioner avers that in the wake of the decision of the Supreme Court aforementioned the 1st – 9th Respondents and other leaders of NASA and its affiliate parties have publicly threatened that unless their demands for new electoral framework are met they will either prevent, impede, subvert or otherwise ensure by fair or foul, legal or illegal means that the fresh presidential elections will not be held. 22 Further the Petitioner avers that if the fresh presidential elections aborts by whatever means the Republic of Kenya as likely to plunge into a constitutional crisis on the ground, inter-alia, of legal lacuna on how to conduct new presidential elections thereby necessitating extra-constitutional mechanism to restore the constitutional order. 23 In view of the prohibition in Article 3(2) of the Constitution which outlaws any attempt to establish a government otherwise than in compliance with the Constitution of Kenya, 2010, the Petitioner contends that willful decision and actions by the 1st – 9th Respondents to impede subvert or otherwise ensure the fresh presidential elections will not be held on 26th October, 2017 as scheduled amount to a violation of Article 3(2) of the Constitution which constitutes treason within the meaning of Section 40 of the Penal Code.
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