Supreme Court Registrar Esther Nyaiyaki has protested an order to hand over documents and record a statement on claims that she misled judges to quash President Kenyatta’s re-election.
The registrar was summoned by the Ethics and Anti-Corruption Commission (EACC) on September 25 in a letter to Chief Registrar of the Judiciary Anne Amadi.
In her response to Chief Justice David Maraga, Ms Nyaiyaki says the law gives the Judicial Service Commission the powers to investigate her for any impropriety.
She wants Mr Maraga to give her direction on whether she should honour summons from the anti-graft body.
EACC's letter to Ms Amadi does not state the source of the complaint but it alleges that the registrar falsified the audit report which the Supreme Court relied upon to nullify the August 8 presidential results.
Besides asking Ms Nyaiyaki to present herself to record a statement, it also asked the judiciary to provide the original report she prepared.
The report revealed that some of the forms containing results that were used to declared President Kenyatta the winner of the August 8 poll were not signed while others were photocopies and lacked security features.
EACC investigators want the court to hand over all the documents Ms Nyaiyaki and her team relied upon in preparing the document that tilted the case in Nasa leader Raila Odinga's favour.
Also wanted are all forms 34As, 34Bs, and 34Cs as they were submitted by the IEBC within 48 hours after the filing of the presidential petition.
Others are certified copies of pleadings of the petition, certified copies of the judgement— both majority and dissenting— and a certified copy of the court order that granted the National Super Alliance access to the IEBC servers.
EACC further wants certified copies of correspondences relating to the presidential petition.
In her letter, however, Ms Nyaiyaki protested to the CJ, saying information demanded by the EACC is privileged as it remains part of the exhibits and forms part of the Supreme Court proceedings.
“I am constrained to state that under the oath of office I took, the Supreme Court Act and rules, the Judicature Act and the Judicial Service Code of Conduct, I am unable to avail the information sought by EACC without your forma concurrence or a formal court order bearing in mind the report I prepared was and hitherto remains an exhibit and forms part of the Supreme Court proceedings,” she says in the letter to Mr Maraga.
The letter is copied to the EACC, all the Supreme Court Judges, Secretary of the Judicial Service Commission and Bowry and Company Advocates.
Ms Nyaiyaki says in the letter that she discharged the audit with a conscientious understanding of the orders the court issued and being part of her duties as contemplated section 9 and 10 1 (j) of the Supreme Court Act.
“I am accountable to the Supreme Court and the JSC and the information sought by EACC is privileged in respect of my duties and assignment issued by the Supreme Court during the presidential petition,” she says.
She says she is not aware of the alleged complaint.
“In any event, I would have expected that if there is any alleged impropriety against me, Article 172, 1 (c) as read with Article 252 1 of the constitution gives JSC powers to conduct investigation either on its own initiative or a complaint made against a Judicial officer.”