However, Mr Waweru Gatonye for IEBC opposed the application, arguing it was made in very general and broad terms.

“This can only be characterised as a fishing expedition and an afterthought should not be allowed. There is a deliberate failure of the petitioner to comply with section 27 of the IEBC Act, which allows a party to seek information from IEBC,” he said.

“No explanation has been given, if at all it was required, has not been applied for. This is an afterthought. It is made for a collateral purpose to show that commission cannot comply with an order made by the court to its advantage.”

He said there is lack of good faith in making the application.


“The forms have been filed and there are certified copies. Why should the original be brought to court? Have they looked at them and doubted the forms?”

Mr Somane argued that granting the prayers could affect the expeditious hearing of the petition, yet it has constitutional timeliness.

“It would be a logistical nightmare to get polling day diaries from all over the country. They were sealed and put in the boxes,” he said.

He told the court all the information the petitioner was seeking had been provided to them in a 40GB hard drive and variances explained, unless they are doubting the information.

“They should be fishing there. The kits identified 96 percent of the voters. Some 5.5 million people were identified by thumbs, magnetic readers code stamp,” he said.

President Uhuru Kenyatta, through lawyer Ahmednasir Abdullahi, also argued for the dismissal of the application, saying the petitioners had failed to ask for the same in their pleadings.

Lawyer Jackson Awelle for the National Super Alliance argued that the submission by Mr Mahat showed that the IEBC had a complementary voter identification mechanism that was only known to it and which ran contrary to the court of appeal judgement.

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