Contents of the Supreme Court decision that nullified the August 8 presidential election came into play when an election petition court finished hearing submissions in a case challenging the election of Joseph ole Lenku as Governor of Kajiado.
Ochieng Oginga, representing former Olkejuado County Council Chairman Taraiya ole Kores and Benjamin Tipatet, as petitioners, argued that the election failed the verifiability test as some statutory forms had not been filled in or signed by presiding officers and their deputies.
While lawyers Waweru Gatonye, for Mr Lenku, and Georgiadis Khaseke, for IEBC, argued that it is not mandatory in law for forms to be signed, Mr Oginga maintained that IEBC did not follow the Constitution in conducting and announcing the results.
At some point, Justice John Onyiego invoked the Supreme Court decision of September 1 regarding the failure to sign statutory forms and sought Mr Khaseke’s views on the same.
Mr Khaseke said signing the forms was not mandatory.
Mr Kores and Mr Tipatet took over the petition after former Kajiado Governor David Nkedianye withdrew his case. Mr Kores lost to Mr Lenku at the nomination stage for Jubilee Party and later defected to the Nasa coalition.
Mr Tipatet had expressed interest in contesting the Kajiado Speaker’s position but withdrew later.
Apart from signing the forms, Mr Oginga listed a number of issues he said warranted Mr Lenku’s election to be nullified and a fresh one held.
He argued that IEBC, Kajiado County returning officer, and Kajiado North returning officer, being the third, fourth and fifth respondents respectively, did not provide original documents for perusal by the court.
He also said that use of technology in the election was not simple, accurate and verifiable.
In his response, Mr Gatonye said Mr Oginga did not provide sufficient evidence to nullify the election. He argued that the threshold of proof in an election petition was higher than in a civil or criminal case.
“The totality of evidence provided by the petitioners awfully failed to prove a case against the first respondent,” said Mr Gatonye. He pointed to the petitioners’ assertion that there was manipulation of electronic results, arguing that there was no ICT expert to offer supporting evidence.
Justice Onyiego will deliver the verdict on January 25.