The Supreme Court when it sat on Saturday/MOSES MUOKI
The court, which held a pre-trial conference on Saturday night, will first deliver several rulings from 2pm before it gives Odinga’s legal team six hours from 3pm to make its case on what lead lawyer James Orengo termed as ‘fundamental flaws’ in the tallying of votes relied on to declare President Kenyatta winner.
The rulings to be issued at 3 pm are on applications by parties seeking to join the suit as a friend of the court or interested parties—the Attorney General Githu Muigai, the Law Society of Kenya (LSK), lawyer Charles Kanjama among others.
It will also rule on application filed by Odinga for access to the Independent Electoral and Boundaries Commission’s (IEBC) servers as well as those of the Kenya Integrated Elections Management Systems (KIEMS) service providers Safran.
Odinga and his co-principal Kalonzo Musyoka—who was his running mate—have also applied for access to the original, famed Form 34As and Bs which, respectively, are the official record of the number of votes each of the eight presidential candidates got in the August 8 election.
And while the IEBC made a concession where the forms are concerned, they, together with President Uhuru Kenyatta’s legal team – the respondents – presented the petitioners’ request to access the servers and systems as impractical to achieve in the limited constitutional timelines provided for the hearing and determination of the petition.
The petitioners’ position, as argued by Senior Counsel James Orengo was that it would take no more than a few hours but gave estimations ranging from 30 minutes to one hour to between two and three, to 18 hours and finally back down to five hours.”All we need is access to the system to be able to verify what was transmitted there,” Orengo pleaded with the court.
His co-counsel and former Ombudsman Otiende Amollo asked the court to give the party up to mid-morning Monday, should they be granted access to the information they sought, to report back to the court with their findings.
More fundamentally, the IEBC and President Kenyatta’s legal teams led by Paul Muite and Fred Ngatia respectively, said it was not only unorthodox but counter to legal practice, to allow the petitioners to introduce new evidence once their case was already filed; making the case that the court was compelled to make their determination based on the evidence before it.
Such an application, IEBC Chairperson Wafula Chebukati’s legal representative Issa Mansour submitted, should have properly been made before the petitioner filed their petition if they intended to rely on said evidence. “This is an application that should have been made seven days ago.”
President Kenyatta’s counsel Ahmednasir Abdullahi was of the same mind, submitting that in essence, Odinga had in his own affidavit in support of the application, admitted that they had no case absent the “fishing expedition.”
The respondents also took the petitioners to task over public statements they had made to the effect that they were already in possession of evidence that the IEBC’s systems were hacked even going as far as to claim that slain IEBC ICT manager Chris Msando’s access codes were used posthumously the afternoon of the election.
Justice Isaac Lenaola himself questioned how the petitioners, should they be granted access to the information they seek, inform the court of their findings given the deadlines for entering evidence are long past.
The judges who were adamant that the hearing proper of the petition must commence on Sunday, having held the pre-trial conference on Saturday, will deliver their ruling on the application at 2pm Sunday before proceeding to hear the petition at 3pm.
They will also be ruling on the applications of various parties including the Attorney General and Law Society of Kenya, to be enjoined as friends of the court.
The court is required to issue the final ruling on the case not later than Friday September 1, which will be the 14th day since it was filed.
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