In Summary
  • Mr Orengo nearly caught everyone off-guard when he launched into discussing the contents of a report generated by his team from the server logs handed over to them by the IEBC.

  • The team was of the opinion that all the issues raised by Mr Odinga and his running mate Kalonzo Musyoka had been responded to adequately in the affidavit by Ms Kassait.

  • At least two clerks were transferred and research assistants who had been seconded to the judges dropped ahead of the second petition as the investigations continued quietly.

The evening of Tuesday, August 29, was not a good one for the lawyers who represented the Independent Electoral and Boundaries Commission in the petition at the Supreme Court.

The report by the Supreme Court Registrar Esther Nyaiyaki had just been submitted to the judges and a copy filed at the registry. The parties – the petitioners, the IEBC and President Uhuru Kenyatta – were given 10 minutes each to comment on it.

Giddy with excitement, his hands trembling as he spoke, James Orengo, one of Raila Odinga’s lead lawyers, went first, with oomph and confidence as he stated that the reports on the access to the servers and the scrutiny of the result forms were “two smoking guns.”

Mr Orengo nearly caught everyone off-guard when he launched into discussing the contents of a report generated by his team from the server logs handed over to them by the IEBC. He was stopped and Chief Justice David Maraga ordered the clerk to hand the report back to him.

REPORT

While stopping Mr Orengo’s attempt to irregularly file the report might have looked like the decisive moment, the actual decisive moment was the point when the forms were scrutinised and the report written and filed.

The 13-page report with annexes running into 401 pages would turn out to be the turning point for the case and a major player in the decision on September 1 that made for one of the major events of 2017.

Among the report’s damning contents were that returning officers had not signed Forms 34B in Kisauni, Nyali and Likoni, and that and Form 34B for Nyali did not have a serial number. The sum of these was that the forms could have been fake.

As they read it in court, the IEBC’s lawyers realised some of the allegations were wrong.

“When I was there, if you saw the video, you will see me and Issa (Mansur) running from the back of the court to KK (Kamau Karori) before (Paul) Muite sat down, because some of the information that was coming from the report was inaccurate as relates to the Forms 34Bs because that is the thing I could remember,” said Mahat Somane, one of those on the IEBC team.

VOTER REGISTRATION

Mr Somane was on call with Immaculate Kassait, the director of voter registration and logistics at the IEBC, and she was sending him copies of the forms, showing that they had actually been signed.

With hindsight, the lawyers think the court should have given all parties more time to submit on the report.

“The report runs into several hundred pages and the IEBC was given 10 minutes to read it. Even if you are a robot, there is no way you can be able to read that report and make sense of it in 10 minutes and then you’re supposed to report on it in 15 minutes,” said Kamau Karori, one of IEBC’s lawyers.

The lawyers were of the opinion that all parties should have been given more time to study the report, give it to their clients and then go back to the court to explain their assessment of its contents and in their case, debunk some of its assertions.

But because it was submitted on the last day of the hearings, nobody got a chance to scrutinise it properly before the determination was made.

AFFIDAVIT

The team was of the opinion that all the issues raised by Mr Odinga and his running mate Kalonzo Musyoka had been responded to adequately in the affidavit by Ms Kassait.

“Obviously that affidavit could not answer subsequent reports that were prepared by somebody else,” said Mr Karori.

Even as they stress that they respect the court and abide by its decision, the lawyers see the introduction of the registrar’s report as one point where the court’s decision was questionable. 

“That had a huge impact on the outcome of the case and the question then would be, ‘Who introduced the evidence? Was it the petitioner or was it the court that introduced it?’ Since it was a registrar who introduced that report, it was not introduced by the petitioner,” said Mr Karori.

The report has since then become a controversial subject in the corridors of the apex court, especially after Justice Njoki Ndung’u said in her dissenting judgment that she had a look at the forms herself and they were okay.

TRANSFERRED

At least two clerks were transferred and research assistants who had been seconded to the judges dropped ahead of the second petition as the investigations continued quietly.

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