Kenya’s Chief Justice has said the Supreme Court is unable to hear a petition calling for a delay in Thursday’s presidential re-run.
David Maraga said not enough of the court’s seven judges were available to hear the case.
The deputy chief justice was not available after her bodyguard was shot by unknown gunmen on Tuesday.
The BBC’s Alastair Leithead in Nairobi says the election is now expected to go ahead as planned.
The Supreme Court annulled the original election in August, by a 4-2 majority, saying there had been “irregularities and illegalities”.
Opposition leader Raila Odinga is boycotting the re-run, saying nothing has changed.
President Uhuru Kenyatta, who is seeking a second term, has said the ballot must go ahead.
More on Kenya’s elections:
Five judges are needed for a quorum but Mr Maraga said that Deputy Chief Justice Philomena Mwilu “was not in a position to come to court”.
Her bodyguard is receiving treatment at a Nairobi hospital.
Mr Maraga apologised to all parties that the hearing was not held.
Kenyans on their own
By Dickens Olewe, BBC News, Kenya analyst
This is a big blow to an institution that was recently being hailed the world over, especially in Africa, as a beacon of judicial independence.
Some will view today’s development as evidence that the Supreme Court has shirked its responsibility and told Kenyans that they are effectively on their own.
The excuses that three judges gave for their absence, denying the court a quorum, are pretty flimsy. While a fourth was presumably in shock after her bodyguard was shot.
It now seems that when Chief Justice David Maraga (above) said a few weeks ago, amid intimidation following the annulment of the August election, that the judges were ready to pay the ultimate price to defend the rule of law, he was not widely supported.
It is now almost certain that the repeat presidential election will go ahead as planned. Its credibility is however in doubt, as even the chairman of the electoral commission has admitted.
Some international observers have reduced their involvement in the poll because they say the conditions are not conducive for a free and fair election.
The lawyer for the electoral commission, Paul Muite, told Kenya’s Citizen TV that the absence of the Supreme Court hearing clears the way for Thursday’s poll.
“It means elections are on tomorrow. There is no order stopping the election,” he said.
However, Anyang Nyong’o, governor of the western Kisumu county, an opposition stronghold, said people would be justified to rebel if the vote went ahead on Thursday.
“If the government subverts the sovereign will of the people… then people are entitled to rebel against this government,” Reuters news agency reports him as saying.
Opposition protesters have blocked roads and lit bonfires in the city.
The government had declared Wednesday a national holiday to allow people to travel to places where they are registered.
Where were the judges?
Judges who voted to annul August poll:
- Chief Justice David Maraga – present in court
- Deputy Chief Justice Philomena Mwilu – absent. Her bodyguard was shot by gunmen on Wednesday
- Justice Smokin Wanjala – absent. “Unable to come to court”
- Justice Isaac Lenaola – present
Judges who dissented, saying results should be respected:
- Justice Jackton Ojwang – absent. “Unable to come to court”
- Justice Njoki Ndung’u – absent. Missed her flight to Nairobi
On sick leave:
- Justice Mohamed Khadhar Ibrahim – receiving treatment abroad
Meanwhile, opposition leader Mr Odinga had called for a major political rally in the capital ahead of tomorrow’s election, where he is expected to make “a major announcement”.
Police have however said that the opposition coalition Nasa had not reserved the use of the rally’s venue. The city’s police boss has said he will not allow the rally to take place.
There is concern that the heightened political environment could lead to violence like that seen after the 2007 poll which left over 1,600 people dead and thousands displaced.