In Summary
  • One of the sticking issues, and which the Jubilee brigade have latched onto to attack the majority judgment, is Justice Njoki Ndung’u’s assertion that her colleagues did not scrutinise the results declaration forms in making their opinion to annul the August 8 presidential election.
  • But, according to critics, Justice Ndung’u’s assertion raises the question as to when she carried out the scrutiny.
  • The Supreme Court judges have become the subject of attack and negative innuendo. For instance, Nasa presidential candidate Raila Odinga on Friday claimed one of the judges visited State House ahead of the delivery of the judgment.

When the Supreme Court judges turned up on September 20 to deliver their detailed judgment for either nullifying the presidential election or dissenting, the public felt all the questions they had regarding the petition were going to be answered.

Unfortunately, that has not been the case as the dissenting judgments specifically left more questions than answers.

One of the sticking issues, and which the Jubilee brigade have latched onto to attack the majority judgment, is Justice Njoki Ndung’u’s assertion that her colleagues did not scrutinise the results declaration forms in making their opinion to annul the August 8 presidential election.

“The court, however, had the option to personally examine the original forms deposited in the registry; the majority did not do so,” she states in paragraph 662 of her dissenting judgment, and adds that “in the interest of justice” she examined each of the forms that had been disputed.

PICKED ASSERTION

President Uhuru Kenyatta has since picked on the assertion, terming the majority judgment a “monstrous injustice.”

“It is now manifestly clear that despite the fact that the relevant forms had already been deposited in court by the Independent Electoral and Boundaries Commission (IEBC), no proper scrutiny or verification ever took place, which would otherwise have brought the court to the inescapable conclusion that the election result of August 8 was valid,” President Kenyatta said on Thursday.

But, according to critics, Justice Ndung’u’s assertion raises the question as to when she carried out the scrutiny.

And, if indeed she did, former Law Society of Kenya (LSK) chief executive Apollo Mboya wonders at what time she scrutinised the forms since her summary of the judgment had no reference of such.

SCRUTINISE

“Had she looked at the forms at the time of delivering the summary judgment on September 1? If one had to look at the forms, the time for doing so was before making an opinion to nullify or uphold the election but there is no hint of this in Justice Ndung’u’s summary dissenting judgment,” said Mr Mboya.

He adds that it was not humanly possible to scrutinise the disputed forms within the limited time the Supreme Court had to deliver its judgment on September 1.

As well as Mr Mboya, an informed source in the judiciary wondered if Justice Ndung’u could be forgetting that the Supreme Court registrar’s report was based on all the documents that had been presented by the petitioner and the respondents, as well as what IEBC filed consequent upon the court order for scrutiny.

Page 1 of 2