Fresh bat­tle for Uhuru in re­peat elec­tion pe­ti­tion

Business Daily (Kenya) - - FRONT PAGE - Sam Kiplagat and Ibrahim Oruko JEFF ANGOTE

A bat­tle of wits be­tween top lawyers marked the open­ing of the hear­ing of the pe­ti­tion against elec­tion of Pres­i­dent Uhuru Keny­atta in the Oc­to­ber 26 re­peat poll.

As we went to press, the Supreme Court was last evening ex­pected to rule on pre­lim­i­nary ap­pli­ca­tions by lawyers seek­ing to have some doc­u­ments ex­punged from court records, and also ob­ject­ing to op­po­si­tion coali­tion Nasa’s ad­mis­sion in the case.

Pres­i­dent Uhuru Keny­atta and the elec­toral com­mis­sion op­posed an ap­pli­ca­tion by pe­ti­tion­ers for scru­tiny of ma­te­ri­als used in the Oc­to­ber 26 re­peat pres­i­den­tial poll.

The two ar­gued that the ap­pli­ca­tion by Njonjo Mue and Khelef Khal­ifa is prej­u­di­cial to them, a waste of ju­di­cial time and an abuse of court process.

Through lawyer Ma­hat So­mane, the com­mis­sion said the doc­u­ments the pe­ti­tion­ers were seek­ing have been pro­vided in the fil­ings pre­sented to the court and par­ties to the pe­ti­tion in soft copy for­mat.

Mr Mue and Mr Khal­ifa wanted the apex court

to or­der IEBC to pro­duce copies of in­ter­nal memos, min­utes, ple­nary de­lib­er­a­tions among other doc­u­ments re­lat­ing to the re­peat poll for the pe­riod be­tween Septem­ber 1 and Oc­to­ber 31.

Julie Soweto, lawyer for the pe­ti­tion­ers, told the court there is ev­i­dence of ma­nip­u­la­tion and dis­crep­an­cies in the doc­u­ments, and that it is only through scru­tiny that the pe­ti­tion­ers could know what re­ally hap­pened on Oc­to­ber 26.

“Is­sues raised in the memo by Dr Rose­lyn Akombe af­ter she re­signed is vi­tal in the in­ter­est of jus­tice that the par­ties should be al­lowed to ac­cess the de­lib­er­a­tions of the IEBC and par­tic­u­larly on is­sues that were pub­licly ad­mit­ted by the com­mis­sion,” Ms Soweto ar­gued.she said IEBC chair­man Wafula Che­bukati had pub­licly ad­mit­ted the is­sues raised by Dr Akombe be­fore she fled and such ad­mis­sion had opened up the com­mis­sion to pub­lic scru­tiny and de­bate and thus the pub­lic de­serves to know the com­plete pic­ture of what was hap­pen­ing in the com­mis­sion.

She thus asked the court to com­pel IEBC to present for scru­tiny SD cards of the Kenya In­te­grated Elec­tions Man­age­ment Sys­tem (Kiems), the voter reg­is­ter and num­ber of vot­ers who turned up to vote be­cause there are al­le­ga­tions of vote tem­per­ing.

“Ev­i­dence shows dis­crep­ancy and ma­nip­u­la­tion of re­sults trans­mis­sion and the only way to ver­ify is through scru­tiny,” she said.

How­ever, lawyer Waweru Gatonye for IEBC op­posed the ap­pli­ca­tion, ar­gu­ing it was made in very gen­eral and broad terms. “This can only be char­ac­terised as a fish­ing ex­pe­di­tion and an af­ter­thought should not be al­lowed. There is a de­lib­er­ate fail­ure of the pe­ti­tioner to com­ply with sec­tion 27 of the IEBC Act, which al­lows a party to seek in­for­ma­tion from IEBC,” he said.

“No ex­pla­na­tion has been given, if at all it was re­quired, has not been ap­plied for. This is an af­ter­thought. It is made for a col­lat­eral pur­pose to show that the Com­mis­sion can­not com­ply with an or­der made by the court to its ad­van­tage.” He said there was lack of good faith in mak­ing the ap­pli­ca­tion.

“The forms have been filed and there are cer­ti­fied copies. Why should the orig­i­nal be brought to court? Have they looked at them and doubted the forms?”

‘‘This can only be charc­terised as a ish­ing ex­pe­di­tion and an af­ter­thought’’

SUIIT Chief Jus­tice David Maraga, with Deputy Chief Jus­tice Philom­ena Mwilu at the Supreme Court yes­ter­day.

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