Light mo­ments mark first day in court

Ses­sion ap­pears like a warm-up ahead of the con­test as Maraga pro­vokes laugh­ter with his re­marks

Daily Nation (Kenya) - - NATIONAL NEWS - BY JOHN NGIRACHU @John­n­girachu jn­­tion­

Lawyers who did not get op­por­tu­nity to speak in pre­vi­ous poll pe­ti­tion get chance to make case

Judges try to keep a straight and in­scrutable face in court, show­ing no ex­cite­ment or worry and be­ing firm and se­ri­ous in ev­ery­thing they do.

They had been do­ing just that in the course of the pre-trial hear­ing yes­ter­day, tak­ing notes, lis­ten­ing and oc­ca­sion­ally ask­ing for clar­i­fi­ca­tion. But af­ter 10 min­utes of a flu­ent ex­pla­na­tion by Mr Ma­hat So­mane, one of the lawyers rep­re­sent­ing the In­de­pen­dent Elec­toral and Bound­aries Com­mis­sion (IEBC), Chief Jus­tice David Maraga smiled, look­ing be­mused.

Mr So­mane had ex­plained that his client had pro­vided all the doc­u­ments bear­ing in­for­ma­tion on the tech­no­log­i­cal as­pects of the con­duct of the elec­tion that the pe­ti­tion­ers and Nasa needed.

Jus­tice Maraga and the rest of the judges had looked on as Mr So­mane, us­ing tech­ni­cal jar­gon, ex­plained what his client had pro­vided to shed light on the mat­ter.

He had also re­ferred to a bid by pe­ti­tion­ers Njonjo Mue and Khelef Khal­ifa, through their lawyers Julie Soweto and Harun Ndubi, to have all the forms used in the elec­tion, the mem­ory cards, Kenya In­te­grated Elec­tion Man­age­ment Sys­tem kits and their logs as “a fish­ing ex­pe­di­tion”.

When the lawyer con­cluded, Jus­tice Maraga asked him: “Are you say­ing that all the in­for­ma­tion they are seek­ing has been pro­vided?”

“It is all in the 40GB drive,” said Mr So­mane.

“So they should go fish­ing there?” Jus­tice Maraga asked, pro­vok­ing laugh­ter from the men and women in black robes seated be­fore him and al­most drown­ing out Mr So­mane’s pos­i­tive re­sponse.

The Har­vard-ed­u­cated lawyer was in the IEBC team in Au­gust and pre­sented some of the ar­gu­ments but did not play a role as prom­i­nent as he did yes­ter­day, where he also showed a good grasp of the tech­no­log­i­cal side of the elec­tion.

Ms Melissa Ng’ania, an­other lawyer, was last time in Pres­i­dent Uhuru Keny­atta’s team led by Mr Fred Nga­tia. This time around, she was given the first op­por­tu­nity to ar­gue the ap­pli­ca­tion to have Nasa re­moved from the pe­ti­tion and to have the in­ter­nal memos leaked from the IEBC ex­punged.

She stepped on a plat­form to reach the stand, re­fer­ring to a tablet where her el­der col­leagues pre­ferred pa­pers. On the bench be­fore her, only Jus­tice Smokin Wan­jala was typ­ing on a lap­top as the rest took notes by hand.

Mr Tom Macharia, an­other of Pres­i­dent Keny­atta’s lawyers, would later at­tempt to il­lus­trate the dif­fi­culty of the task if the judges were to al­low the scru­tiny of the doc­u­ments in the hard drive sup­plied by IEBC. He said the doc­u­ment was in fact 48GB, which if con­verted to pa­per would add up to 24 mil­lion pages.

“Even if we were to give a 100man team, these doc­u­ments, work­ing at the su­per­sonic speed of a doc­u­ment per sec­ond, it would take us three years,” he said.

Com­pared to the hard drive given to the court by the IEBC in the Au­gust pe­ti­tion, the cur­rent one was six times larger, he added.

When the pe­ti­tion­ers’ lawyers were about to make a re­join­der, Jus­tice Maraga told Ms Soweto: “You heard where you are to go fish­ing.”

But Ms Soweto had not taken kindly the re­marks by her male col­leagues and as she rose told the judges: “I think my col­leagues are tak­ing ad­van­tage of my be­ing a lady.”

Af­ter the protests from her male col­leagues died down, Ms Soweto ex­plained that the doc­u­ments had been sub­mit­ted by the IEBC late Mon­day night and the hard drive had been de­liv­ered later.

In such cases, the pre-trial hear­ing ap­pears like the warm-up, where the lawyers slyly as­sess each other be­fore the main con­test.

Last time, Mr Ahmed­nasir Ab­dul­lahi com­plained about the crowded and stuffy court­room. This time round, there was more space for ev­ery­body.

There were also fewer politi­cians around. Only MPS Aden Duale and Daniel Maanzo were present.

When a dis­pute arose on whether the pe­ti­tion­ers had filed all the doc­u­ments in the pe­ti­tion by the Novem­ber 6 dead­line, Jus­tice Maraga made the rare de­ci­sion of hav­ing a court staffer re­spond.


Lawyers for var­i­ous par­ties at the Supreme Court, yes­ter­day.

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