Fireworks at Supreme Court as presidential petition hearing kicks off

Fireworks at Supreme Court as presidential petition hearing kicks off
The seven-judge bench at the Supreme Court during the pre-trial conference on Saturday, August 26 2017.

The much anticipated hearing of the 2017 Presidential Petition filed by National Super Alliance (NASA) presidential candidate, Raila Odinga, started on Saturday, August 26, with the pre-trial conference that kicked off at exactly 7:30 pm at the Supreme Court promising what will be a fierce legal battle the country has ever witnessed.

Parties involved in the petition disagreed on a number of issues even before the trial kicks off on Sunday, August 27 at 3 pm- this even as Chief Justice, David Maraga, pleaded with the lawyers to agree on a number of issues for the court to fast-track the hearing process.

At 2 pm Sunday, an hour to the commencement of the official kick off time of hearing the petition, the seven-judge bench will rule on a number of issues.


Late affidavits and new evidence

The first issue the Supreme Court will rule on is that of affidavits filed late.

NASA, through its lead Counsel James Orengo, had submitted new documents and affidavits together with evidence two days past the constitutional deadline of August 18.

In one of the affidavits filed by a Mr. Edgar Ouko, he is questioning the authenticity of Forms 34A and Forms 34B that IEBC has presented on the public portal. The affidavit indicates that the forms are a total forgery and manipulated.

Mr. Ouko says that on scrutinizing and scanning the security bar codes on the said forms, they revealed names of institutions in France and hotels in Kenya and not any IEBC-related or specific polling stations as is supposed to show.

IEBC, the first respondent in the petition, and President Uhuru Kenyatta, third respondent, legal teams were opposed to this move by NASA, arguing that the late affidavits and evidence filed could change the whole nature of the petition.

They want the court to expunge the new materials on accounts that they were not served in good time to go through them and restructure their submissions and defense in line with them.

“Our position is that the extra affidavits by NASA were filed outside the time set and introduced new evidence which we were not able to respond to. We will be prejudiced if they are not struck out and allowed to proceed with it,” said Issa Mansur, IEBC Lawyer.

However NASA’s Lawyer, Otiende Amollo, responded that IEBC’s fears were based on misconception since the new evidence was not in support of the main petition but in support of another application to be allowed to audit IEBC forms filed in court.

Access to IEBC servers

Through his lead Counsel James Orengo, NASA candidate Raila Odinga wants, as part of his evidence, access to the electoral commission servers.

He argues that by access to the servers, his legal team will be able to compare the authentic results against the ‘manufactured’ presidential results.

IEBC legal team was opposed to this request arguing that access to its servers would compromise with the results.

However, Mr. Orengo says that “if IEBC claim they conducted free, fair and credible polls, then why are they not comfortable with us, NASA, accessing their servers to set straight the records?”

Allowing amicus curiae

Attorney General (AG), Githu Muigai, the Law Society of Kenya (LSK), presidential candidate, Ekuru Aukot and others have requested to be enjoined in the case as friends of the court.

Counsel, James Orengo, is reading mischief with the involvement of the AG in this case.

However, AG says that he is an interested party in the petition case.

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Story By Majanga Michael
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