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December 17, 2017

Supreme Court kicks NASA out of Uhuru election petition

NASA  lead lawyer James Orengo flanked by Nasa  leader Raila Odinga and other leaders  address the press outside    the Supreme court  after the  court  nullified Presidential results  on Friday,September 01.
NASA lead lawyer James Orengo flanked by Nasa leader Raila Odinga and other leaders address the press outside the Supreme court after the court nullified Presidential results on Friday,September 01. PHOTO/COLLINS KWEYU

NASA yesterday failed to convince the Supreme Court it has a stake in the petition challenging Uhuru Kenyatta's win in the presidential rerun on October 26.

It will not be party to the two petitions seeking nullification of the disputed win.

The two petitions will be consolidated and heard together starting today.

A six-judge bench led by Chief Justice David Maraga ruled that the opposition cannot be sustained in the petition filed by activist Khelef Khalif seeking to invalidate Uhuru's victory.

Though Justice Maraga said he will give reasons later, he said the court had perused the application and had considered oral arguments.

It was also a big blow to the petitioners after the court expunged as evidence internal IEBC memos tabled in court by the petitioners after it emerged they were illegally obtained. They were in the public domain, however.

The judges however did not strike out documents filed late by the petitioners. Kenyatta wanted them blocked on the technicality that they were filed outside the prescribed time.

But the judges disallowed some paragraphs contained in the case since they touched on the memos struck out.

The court  this morning will rule on the application by petitions that they be allowed to scrutinise the KIEMS kits, among other things.

The judges deferred another case filed by the Institute for Democratic government seeking to declare NASA leaders unfit to hold office, saying it was not time-bound.

The court also allowed Attorney General Githu Muigai to come on board as an interested party in the Njonjo Mue case,but not as a friend of the court.

     Also allowed is ThirdWay Alliance leader Dr Ekuru Aukot


Earlier Raila Odinga and President Uhuru Kenyatta battled at the Supreme Court  as justices began hearing three petitions challenging Kenyatta's election on October 26.

It was the second time in two and a half months, 80 days, that Uhuru's victory was challenged. His win on August 8 was overturned by the court on September 1 and a rerun ordered.

Kenyatta won the rerun on October 26, but he ran unopposed after Raila pulled out, saying the system was unfair.

Now the curtain rises again on the six-judge bench headed by CJ David Maraga.

Maraga has said the court will not hesitate to nullify the rerun if it does not satisfy legal requirements.

Jubilee lawyers raised several technicalities, such as filing some documents one day late and providing two instead of the requisite eight copies of petitions.

It said the whole petition was illegal should be thrown out.

When the Supreme Court heard the challenge to Uhuru's victory on August 8, it rejected technicalities and admitted into evidence late documents.

Yesterday, Jubilee urged the court to allow it come on board as an interested party in a petition by the Institute for Democratic Governance. NASA opposed it.

The institute filed a petition against Raila over the chaos and violence in parts of the country on October 25. It says Odinga infringed on the rights of Kenyans to vote.

Jubilee Lawyer Njoroge Regeru said the party has millions of members who were affected by violence perpetrated by NASA and its supporters.

In another petition, NASA urged the court to reject Jubilee's bid to have it removed as a respondent in the petition filed by opposition activists Njonjo Mue and Khelef Khalif.

Jubilee accused NASA of introducing new evidence and issues in a case where they are not original petitioners.

Lawyer Fred Ngatia said the court ought to strike out everything NASA filed because the central focus of the case is the President elect and no orders had been sought against the party.

Ngatia argued NASA boycotted the election and therefore cannot purport to be heard on a contest they never participated in.

NASA’s Paul Mwangi and Jackson Awele said it would be prejudicial for petitions to be heard without allowing the party adversely mentioned to be heard.

Opposition lawyers said the petition by the Institute for Democratic Governance ought to be rejected because it was not an election petition.

However lawyer Kioko Kilukumi representing the institute said the court should hear the petition seeking to punish Raila for election offences, as it falls within its mandate.

He said the violence and the boycott during the election resulted from NASA’s call on its supporters and cannot be ignored.

The court will have to grapple with the issue of violence when it tackles the petition on whether to nullify the election.

Kenyatta's team and the IEBC strongly sought to have the court expunge five internal memos from the IEBC, which it said were illegally obtained.

The IEBC said allowing use of those memos meant relying on inconclusive information.

Lawyer Melisa Ng’ania representing Uhuru said relying on illegally obtained evidence will jeopardise the IEBC's independence. 

She said the memos should have been requested in writing but the two activists never wrote to the IEBC for them.

"They are unlawfully obtained they need to be expunged" Ng'ania argued..

IEBC lawyer Kimani Muhoro warned the judges not to delve into illegal memos selectively introduced to drive a certain narrative.

Also sought by the President is striking out of documents filed by the activists one day past the constitutional deadline.

Lawyer Fred Ngatia said the bulk of documents tabled in court by the activists were filed on November 7 instead of November 6 as stipulated by law.

He said considering the documents filed out of time will amount to an illegality.

The activists lawyer Julie Soweto opposed the application to expunge.

She said her clients actually asked for the information from IEBC but when they didn’t get any response they picked what was available in public domain and tabled it in court.

In her view the memos opposed are already in the public domain.

She urged the judges to consider the overriding principle of right to public information in the public interest over an individual right, by allowing the memos.

She did not explain late filing and blamed court registry staff whom she said were too tired and asked her to come back the next day.

This prompted the CJ to question deputy registrar Daniel ole Keiwua to state the correct position.

Soweto said her duty is to avail to the court sufficient copies of the petition, which they did. “Justice should be administered without undue regard to procedural technicalities. This is a procedural technicality,” she said.

She said she brought two complete set of documents and they were in the process of filing the others but was told to return the following day.

But Ole Keiwua said they came up with two complete sets of the petition and brought the rest, five others, the following day.

He added,: “They left at their own choice, we were not tired, my Lords.”

Petitioners were required at least to file eight complete sets of their petition.

Ngatia said the court cannot turn a blind eye to the fact that they failed to comply with the law.

He urged court to expunge all documents filed outside the time frame provided by law. 

The court was also asked to order IEBC to produce vital documents including the full KPMG audit report of the voter register, minutes and memos exchanged by commissioners prior to October 26 election.

Other documents sought include the scrutiny of SD cards of Kiems kits, logs, certified copies of voter register, forms 32 A and B which are crucial to verifying allegations of tampering with results in Garissa (10 polling stations) and Muranga counties(19 polling stations). She also wants GPS coordinates of all polling stations.

To buttress her argument, Soweto referred the court to bundles in her client’s petition which allegedly show overwriting of figures in the two counties which point to tampering.

This plea was opposed by IEBC’s Waweru Gatonye and Mahat Somane who saidthe application was an afterthought.

Somane told the court the informationsought is all compressed in a 4gb flash drive IEBC provided to court and all the other parties.

He urged the court to dismiss the application for scrutiny.

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