President Uhuru Kenyatta's lawyers have asked the Supreme Court to expunge five internal memos filed by two activists challenging his win.
Lawyer Melissa Ng'ania, who made her submission on behalf of Uhuru's legal team, argued the memos were unlawfully acquired so they should not be in court records.
Ng'ania noted on Tuesday that no request was made to IEBC prior to access to internal documents as required by law. She said their use would jeopardise the case.
But counsels Julie Soweto and Harun Ndubi, who are representing ICJ's Kenyan chapter charman Njonjo Mue, said the documents are in the public domain so they should not be ignored.
"They have been circulated broadly. The documents are important. The arguments here cannot stand. Public interest outweighs the objection by the two," Soweto said.
Soweto added IEBC did not deny the memos after they were leaked so they should not be removed.
"...having been publicised in the electoral and the mainstream media, the IEBC did not object to them even in their proceedings," she noted.
In September, commission chairman Wafula Chebukati issued a memo demanding that CEO Ezra Chiloba explain why some forms printed by Al Ghurair had no security features.
Chebukati detailed numerous failures by the secretariat that formed a key part of the Supreme Court proceedings.
Lawyer Fred Ngatia, who is also part of Uhuru's legal team, further asked the court to strike documents the petitioners filed after the stipulated time.
Ngatia noted affidavits and other volumes in support of the case were presented beyond time limits.
The lawyers also want the court to remove the National Super Alliance from the petition challenging their client's re-election.
Uhuru was declared winner of the October 26 repeat presidential election that NASA candidate Raila Odinga boycotted.
Chief Justice David Maraga is expected to lead other judges in a pre-trial conference in the evening when parties will be required to agree on issues to be determined by the court.
Other issues expected to come up during the meeting include who will be allowed to participate as an interested party and as a friend of the court.
On Monday, parties filed their responses and submissions as directed by the court alongside issues for determination. Attorney General Githu Muigai applied as an interested party.
The Institute for Democratic Governance wants the judges to first determine whether they have the jurisdiction to hear and determine the petition.
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