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Supreme Judgement, The Absence Of Justice Ibrahim Mohamed Changes Everything



Justice Ibrahim Mohamed



By JV Owiti
Supreme Court’s Justice Mohamed IBRAHIM did not attend the SCOK proceedings on the 2017 Presidential Elections petition on Tuesday the 29th of August 2017 as he had reportedly fallen sick.

The SCOK, however, proceeded without the learned judge due to what the Chief Justice David Maraga referred to as “pressure of time.”


Section 8 of the Supreme Court Act, No. 7 of 2011 provides for the manner of the manner of arriving at decisions by the SCOK and at subsection (1) provides thus:

“8 (1) The judgment of the majority of the judges of the Supreme Court shall be the judgment of the Court.”

There may, however, arise a case where for the absence of one or more judges (for whatever reason), a tie arises in the verdict of the SCOK.


If the SCOK reaches a termination upon the judgment of the six (6) learned judges (in the absence of a vote by the learned IBRAHIM) and there arises a TIE in the verdict of the SCOK in the petition, then the petition by the Hon. Raila ODINGA against the declaration of HE President Uhuru KENYATTA as president, then the status quo will remain meaning the petition fails and the petition STANDS DISMISSED.

If the decision of the six-judge court is split equally; that is, a 3 – 3 tie, then the petition will be lost and the SCOK will have been unable to make a decision and shall have thus retained the status quo. The election of President SHALL HAVE BEEN UPHELD!

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That’s my understanding of the reading section 25 of the Supreme Court Act, subsection (2) of which provides thus:

“25 (2) If the judges are equally divided in opinion, the decision appealed from or under review shall be considered as having been affirmed.”

(Left – Right) Hon Lady Justice Njoki S. Ndungu, Hon. Justice (Prof.) Jackton Boma Ojwang, Hon. Lady Justice Philomena Mbete Mwilu (Deputy Chief Justice), Hon. Justice David K. Maraga (Chief Justice), Hon. Justice Mohammed K. Ibrahim, Hon. Justice Dr Smokin C. Wanjala and Hon Justice Isaac Lenaola. August 26, 2017.


There, however, are in my view several options available to the learned IBRAHIM having heard a better part of the petition.

(a) Cast a Vote Nonetheless

Participate in the SCOK Decision on the Presidential Elections Petition from home. Having sat through a big part of the said petition, the learned judge reserves the right to cast his vote in the pending verdict. The good justice can rely on transcripts and written briefings of Tuesday’s proceedings in which he was not physically present for the oral arguments.

(b) Abstain from the Final Verdict

The learned judge can in my view decide to abstain from participating in the final vote if he is the conviction that he is unable to go through transcripts and or document in good time and be able to give a well-reasoned decision. That would mean only the remaining six (6) justices will participate in making the final verdict with a 3 – 3 tie being a possibility.

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It is also possible – but I pray it doesn’t happen – that the learned Justice IBRAHIM is indisposed so that he cannot participate in the petition any further such that he is by reason of sickness unable to cast his vote nor make his determination thereon.

This has the same effect as if the learned judge abstained.

For now, we remain hopeful and pray that the learned judge gets well and fully recovers to be able to take back his seat at SCOK.

Full recovery is at the moment the most important, to me more important than even the SCOK awaited the determination of Friday 1st September 2017.

The writer is a lawyer.

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