President Uhuru Kenyatta and the electoral commission have opposed an application by petitioners for scrutiny of materials used in the October 26 repeat presidential poll.
The two argue that the application by Mr Njonjo Mue and Khelef Khalifa is prejudicial to them, a waste of judicial time and an abuse of court process.
Through lawyer Mahat Somane, the commission on Tuesday said the documents the petitioners are seeking have been provided in the large documents presented to the court and parties to the petition in soft copy format.
Mr Mue and Mr Khalifa want the apex court to order IEBC to produce copies of internal memos, minutes, plenary deliberations among other documents relating to the repeat poll for the period between September 1 and October 31.
Ms Julie Soweto, lawyer for the petitioners, told the court there is evidence of manipulation and discrepancies in the documents, and that it is only through scrutiny that the petitioners could know what really happened on October 26.
“Issues raised in the memo by Dr Roselyn Akombe after she resigned is vital in the interest of justice that the parties should be allowed to access the deliberations of the IEBC and particularly on issues that were publicly admitted by the commission,” Ms Soweto argued.
She said Chairman Wafula Chebukati had publicly admitted the issues raised by Dr Akombe before she fled and such admission had opened up the commission to public scrutiny and debate and thus the public deserves to know the complete picture of what was happening in the commission.
She thus asked the court to compel IEBC to present for scrutiny SD cards of the Kenya Integrated Elections Management (Kiems), the voter register and number of voters who turned up to vote because there are allegations of vote tempering.
“Evidence shows discrepancy and manipulation of results transmission and the only way to verify is through scrutiny,” she said.
However, Mr Waweru Gatonye for IEBC opposed the application, arguing it was made in very general and broad terms.
“This can only be characterised as a fishing expedition and an afterthought should not be allowed. There is a deliberate failure of the petitioner to comply with section 27 of the IEBC Act, which allows a party to seek information from IEBC,” he said.
“No explanation has been given, if at all it was required, has not been applied for. This is an afterthought. It is made for a collateral purpose to show that commission cannot comply with an order made by the court to its advantage.”
He said there is lack of good faith in making the application.
“The forms have been filed and there are certified copies. Why should the original be brought to court? Have they looked at them and doubted the forms?”
Mr Somane argued that granting the prayers could affect the expeditious hearing of the petition, yet it has constitutional timeliness.
“It would be a logistical nightmare to get polling day diaries from all over the country. They were sealed and put in the boxes,” he said.
He told the court all the information the petitioner was seeking had been provided to them in a 40GB hard drive and variances explained, unless they are doubting the information.
“They should be fishing there. The kits identified 96 percent of the voters. Some 5.5 million people were identified by thumbs, magnetic readers code stamp,” he said.
President Uhuru Kenyatta, through lawyer Ahmednasir Abdullahi, also argued for the dismissal of the application, saying the petitioners had failed to ask for the same in their pleadings.
Lawyer Jackson Awelle for the National Super Alliance argued that the submission by Mr Mahat showed that the IEBC had a complementary voter identification mechanism that was only known to it and which ran contrary to the court of appeal judgement.