The Supreme Court will decide if presidential candidate William Ruto and his running mate Rigathi Gachagua ascend to power should they be declared winners of the Tuesday polls.

The court yesterday admitted for hearing an application by 11 activists seeking to bar the swearing-in of Dr Ruto and Mr Gachagua in the event that the electoral commission declares them winners of presidential election.

DP Ruto and his running mate are, however, fighting for the dismissal of the case.

When the case was called out for mention yesterday, the apex court’s deputy registrar Bernard Kasavuli said the file will be placed before Deputy Chief Justice Philomena Mwilu for appointment of a five-judge bench to determine the activists’ bid.

Mr Kasavuli said the parties in the suit will later be informed about the decision of the court on the request by the activists .

“The file to be placed before the Deputy Chief Justice for empanellment of a bench to hear and determine the application on record. Parties to be informed when the ruling will be delivered,” stated Mr Kasavuli.

The yet-to-appointed bench will also listen to the objections raised by the electoral commission, Dr Ruto, Mr Gachagua and United Democratic Alliance (UDA) party .

The Independent Electoral and Boundaries Commission (IEBC), together with its chairman Wafula Chebukati, in a joint response to the suit, said the apex court does not have the powers to deal with the issues raised by activists regarding eligibility of Ruto-Gachagua ticket due to integrity issues on the latter.

DP Ruto, Mr Gachagua and their party UDA in a separate joint response said the court does not only lack the powers to hear the case but also that the suit is “incompetent and incurably defective both in form and in substance and is therefore untenable”.

“The petition is an abuse of the court process and it amounts to forum shopping in that the petitioners have filed a similar petition at the High Court constitutional division where they are seeking similar orders and based on the same set of facts,” lawyer Elias Mutuma for UDA, Dr Ruto and Mr Gachagua said. He argued that the activists prematurely and wrongly invoked the authority of the Supreme Court to hear and determine constitutional matters.

“This court can only sit as a court of first instance in such a matter pursuant to the provisions of Article 140 of the constitution (questions as to validity of presidential election). This matter offends the doctrine of exhaustion as regards the avenues of recourse available in the constitution, the Elections Act and IEBC’s rules of procedure on settlement of disputes,” said Mr Mutuma.

Since the gist of the suit is the eligibility of Mr Gachagua due to a recent High Court judgment that allowed the state to seize his Sh202 million alleged dirty cash and an ongoing graft case, Mr Mutuma said the cases are still pending in court.

The activists claim that Mr Gachagua is unsuitable to hold office and that the decision of Dr Ruto to nominate him as running mate was invalid and consequently that their participation in the presidential polls was illegal.

“There exists no basis for the court to issue the orders (sought) since the criminal matters relied upon in support of the application are still pending in court,” said Mr Mutuma.

He added that the suit is a pre-election dispute and has been overtaken by events since elections already took place on August 9 and are only awaiting conclusion of the tallying process, announcement of the results and gazettement of the winning candidates.

“The instant suit is thus at this juncture prematurely instituted before this court as an election dispute but clothed as a pre-election dispute. We submit that the petitioners ought to hold their horses and move to this court appropriately as a court of first instance in such a matter as provided for by the provisions of Article 140 of the constitution,” said Mr Mutuma.

In addition, the lawyer argued that there is no risk of Dr Ruto and Mr Gachagua being immediately sworn into office if they are declared winners.

“The constitution and the Election Act have well-established mechanism which provide for a waiting period of seven days for anyone to petition the Supreme Court to challenge the validity of president-elect to occupy the office.

There is, therefore, no basis for any conservatory orders to be issued since they would serve no useful purpose,” he said.

In his view, the petition “amounts to putting the cart before the horse as no one has been declared president-elect”.

IEBC and Mr Chebukati, on the other hand, said the suit should be dismissed because the petitioners are in effect urging the Supreme Court to usurp the agency’s independence, authority and mandate under the constitution, the Elections Act (2011) and the Elections (General) Regulations (2012) to nominate, validate or invalidate the nomination of candidates in a general election.