In Summary
  • The pre-trial hearing appears like the warm-up, where the lawyers slyly assess each other before the main contest.
  • There were also fewer politicians around. Only MPs Aden Duale and Daniel Maanzo were present.

Judges try to keep a straight and inscrutable face in court, showing no excitement or worry and being firm and serious in everything they do.

They had been doing just that in the course of the pre-trial hearing on Tuesday, taking notes, listening and occasionally asking for clarification.

But after 10 minutes of a fluent explanation by Mr Mahat Somane, one of the lawyers representing the Independent Electoral and Boundaries Commission (IEBC), Chief Justice David Maraga smiled, looking bemused.

Mr Somane had explained that his client had provided all the documents bearing information on the technological aspects of the conduct of the election that the petitioners and Nasa needed.

Justice Maraga and the rest of the judges had looked on as Mr Somane, using technical jargon, explained what his client had provided to shed light on the matter.

He had also referred to a bid by petitioners Njonjo Mue and Khelef Khalifa, through their lawyers Julie Soweto and Harun Ndubi, to have all the forms used in the election, the memory cards, Kenya Integrated Election Management System kits and their logs as “a fishing expedition”.

When the lawyer concluded, Justice Maraga asked him: “Are you saying that all the information they are seeking has been provided?”

“It is all in the 40GB drive,” Mr Somane said.

“So they should go fishing there?” Justice Maraga asked, provoking laughter from the men and women in black robes seated before him and almost drowning out Mr Somane’s positive response.

The Harvard-educated lawyer was in the IEBC team in August and presented some of the arguments but did not play a role as prominent as he did on Tuesday, where he also showed a good grasp of the technological side of the election.

Ms Melissa Ng’ania, another lawyer, was last time in President Uhuru Kenyatta’s team led by Mr Fred Ngatia.

This time around, she was given the first opportunity to argue the application to have Nasa removed from the petition and to have the internal memos leaked from the IEBC expunged.

She stepped on a platform to reach the stand, referring to a tablet where her elder colleagues preferred papers.

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