, NAIROBI, Kenya, Mar 26 – The Supreme Court judges on Tuesday afternoon rejected an application by Raila Odinga to carry out a forensic audit of the Independent Electoral and Boundaries Commission’s (IEBC) Information Technology systems used during the elections.
In a ruling read by Justice Mohammed Ibrahim, the court stated that the application argued by one of Odinga’s lawyer Ochieng Oduol was time-barred.
“It becomes clear that the court cannot grant orders sought without seriously jeopardising the hearing of the petition. The application was filed four days after filing the petition,” Ibrahim said.
The judges were of the view that the application would require the production of the entire of commission’s IT system which could not be possible within the next 24 hours (that is before the start of the hearings scheduled for Wednesday).
“What the applicant seeks at this time of the day is what amounts to be the complete IT infrastructure of the IEBC. We are not persuaded such an order can be fully be complied with before the hearing of the petition.”
The judges noted that if the applicant had made the application at the time of filing the petition, it would have been possible for the court to order IEBC to provide the forensic audit.
“The application was filed long after the petition on which the application is anchored. Coming at the pre-trial conference that is meant to prepare for the actual hearing of the petition, the application is hopelessly out of time and can only derail the fair and effective determination of the case,” the judges said in reference to the arguments put forward by the respondents who opposed the application.
The application by Odinga’s lawyer was also contested by other parties on the basis that it was directed to contractors of the IEBC who are not party to the petition before the Supreme Court.
“The latter are not parties to this petition and as such no order can be directed at them. The court should not issue orders whose reach affects persons who are not parties to this petition. The application is a mere fishing exercise in which the applicant is looking for evidence through the backdoor,” the court said.
The judges agreed with arguments that the applicant did not explain who would carry out the forensic audit, how long it would take and the modalities that would be used to deliver the results from the requested audit.
Meanwhile, the judges also threw out an application by Katiba Institute and former CKRC Chairman Yash Pal Ghai to participate in the petition proceedings as a friend of the court.