Blow to CJ Koome after High Court invalidates rules on hearing of presidential election petition

Chief Justice Martha Koome suffers a setback after the High Court invalidated the regulations governing the presidential petition amendment.

The High Court ruled that her decision to forbid litigants and advocates from commenting on a presidential election case while it was still being heard by the Supreme Court as illegal.

The Supreme Court (Presidential Election Petition Amendment Rules) 2022 was invalidated by Justice Mugure Thande because they did not follow the rules for public engagement.

“The High Court finds that the Supreme Court (Presidential Election Petition Amendment Rules) 2022 are declared unconstitutional for not adhering to Public Participation requirements for usurpation of the authority of Parliament,” Justice Thande said.

A presidential election petition must be filed with the Supreme Court before any public remarks on its merits can be made while the case is still pending.

Additionally, it outlawed speculating on the petition’s conclusion. In justifying the rule, Koome had argued that it was necessary to safeguard the fairness of court processes since some attorneys had a history of appearing in court, making their case, and then criticising judges on social media.

She made the case that the guidelines, which were published in the government gazette on April 12, 2022, were intended to protect the court’s independence and dignity rather than restrict its ability to express itself.

Thande determined that the creation of the regulations was unconstitutional because it interfered with Parliament’s right to legislate what constitutes contempt.

According to the judge, the contested rules are not statutory instruments as defined by the Statutory Instruments Act.

“A declaration is made that the contested regulations are unlawful for the lack of public input and for usurping Parliament’s authority to legislate on contempt and enact sanctions,” she said.

She was giving the court’s ruling on a petition that Nairobi-based attorney Omwanza Ombati had brought, in which he claimed that the rule was oppressive, unconstitutional, ambiguous, irrational, and illegal.