Nasa, Ju­bilee locked out of poll pe­ti­tion

Quick win for Pres­i­dent Keny­atta as ev­i­dence cit­ing in­ter­nal con­flict at the elec­tions agency prior to the re­peat poll is struck out as it was ob­tained il­le­gally and sub­mit­ted late

Daily Nation (Kenya) - - FRONT PAGE - BY SAM KI­PLA­GAT skipla­gat@ke.na­tion­media.com AND IBRAHIM ORUKO ioruko@ke.na­tion­media.com

Judges start hear­ing of pe­ti­tion to­day af­ter pre-trial con­fer­ence yes­ter­day

Uhuru Keny­atta: Fac­ing a sec­ond pe­ti­tion within three months, the in­cum­bent had ev­i­dence ob­tained il­le­gally or sub­mit­ted late thrown away. Raila Odinga: Boy­cotted Oc­to­ber 26 re­peat poll on grounds that the IEBC could not run a cred­i­ble elec­tion; his Nasa coali­tion ex­punged from pe­ti­tion. Ekuru Aukot: Came third, af­ter Raila Odinga, in the re­peat elec­tion and had ap­plied, along­side the AG and LSK, to join the case as an in­ter­ested party. Julie Soweto: Said her duty to the pe­ti­tion­ers is to bring to the court any doc­u­ment that could aid the case, and that IEBC memos are al­ready in pub­lic do­main.

The Na­tional Su­per Al­liance and Ju­bilee party were last evening kicked out of the pe­ti­tions filed at the Supreme Court, chal­leng­ing the elec­tion of Pres­i­dent Uhuru Keny­atta.

The judges also sus­pended from the hear­ing a case filed by In­sti­tute for Demo­cratic Gov­er­nance (IDG) against Nasa lead­ers Raila Odinga, Kalonzo Musyoka and Musalia Mu­davadi be­cause they said it was not time-bound.

The six judges also ex­punged from the court records the con­tro­ver­sial in­ter­nal memos ob­tained from In­de­pen­dent Elec­toral and Bound­aries Com­mis­sion (IEBC). At­tor­ney Gen­eral Githu Muigai was ad­mit­ted as in­ter­ested party but his ap­pli­ca­tion as am­i­cus cu­riae, friend of the court, was re­jected.

In their de­ter­mi­na­tion last evening af­ter the pre-trial hear­ing, judges headed by Chief Jus­tice David Maraga di­rected that Nasa can­not be re­tained as a re­spon­dent in the mat­ter and par­ties to the case were re­strained from mak­ing any ref­er­ences to Nasa lead­er­ship.

They also ad­mit­ted Dr Ekuru Aukot as an in­ter­ested party say­ing that his ap­pli­ca­tion meets the cri­te­ria.

On the IEBC memos, which turned to be a quick win for Mr Keny­atta, lawyer Mel­lisa Ng’ania, said the doc­u­ments were ob­tained il­le­gally and should not form part of the record. Ms Ng’ania said there is a pro­ce­dure for ob­tain­ing in­for­ma­tion from pub­lic bod­ies, and that there is no ev­i­dence such re­quest was made to the com­mis­sion by the pe­ti­tion­ers.

“They are clearly in­ter­nal memos. With­out such re­quest it is best to as­sume that they were ob­tained il­le­gally,” she said.

She added that re­tain­ing the memos would jeop­ar­dise the work of the com­mis­sion and in­fringe on the in­de­pen­dence of the in­de­pen­dent bod­ies. The lawyer said had the com­mis­sion wanted the doc­u­ments to be in the pub­lic do­main, they would have been dis­played on its web­site.

The Pres­i­dent, through lawyer Fred Nga­tia, also wanted some doc­u­ments filed one day af­ter the dead­line struck out of the case.

“I do not need to em­pha­sise that the pe­ti­tion must be filed within seven days, a day which was to ex­pire on the mid­night of Novem­ber 6,” Mr Nga­tia ar­gued.

The lawyer also wanted an af­fi­davit by James Ngodi in sup­port of the pe­ti­tion by Mr Mue and Mr Khal­ifa struck out of the pe­ti­tion, ar­gu­ing that re­tain­ing it would cause con­fu­sion be­cause it is not part of the record.

“If you re­move the doc­u­ments that were filed out of time, strike out some para­graphs be­cause they speak to the doc­u­ments in con­tention,” he asked the court.

Mr Ki­mani Muhoro, for IEBC, sup­ported the re­moval of the let­ters from the court record, ar­gu­ing they were se­lec­tively in­tro­duced to cre­ate a nar­ra­tive. The lawyer said the court should ab­hor such con­duct as the memos are in­con­clu­sive.

But the pe­ti­tion­ers, through lawyer Julie Soweto, ex­plained the dif­fi­cul­ties they en­coun­tered while fil­ing the doc­u­ments, point­ing out that it was their duty to bring to the court suf­fi­cient copies of the pe­ti­tion.

“Jus­tice should be ad­min­is­tered with­out un­due re­gard to pro­ce­dural tech­ni­cal­i­ties,” said Ms Soweto. “This is a pro­ce­dural tech­ni­cal­ity.”

This morn­ing the court will for­mally start the hear­ing of the three pres­i­den­tial pe­ti­tions chal­leng­ing the elec­tion of Pres­i­dent Keny­atta for a sec­ond term.

JEFF ANGOTE | NA­TION

Chief Jus­tice Maraga |

JEFF ANGOTE | NA­TION

Lawyers for var­i­ous par­ties at the Supreme Court yes­ter­day dur­ing pro­ceed­ings of the pres­i­den­tial elec­tion pe­ti­tions. Three pe­ti­tions were filed in court af­ter the re­peat poll on Oc­to­ber 26.

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