President Uhuru Kenyatta wants the Supreme Court to expunge five internal IEBC memos from the petitions against his re-election.
Mr Kenyatta argues that the leaked documents, some of which were widely publicised in the media, were illegally obtained.
Through lawyer Melissa Ng’ania, President Kenyatta on Tuesday said there is no evidence that the five memos were obtained legally.
Ms Ng’ania said there is a procedure for obtaining of information public bodies in Kenya and it must be followed.
She said there is no evidence that such a request was made to the commission.
“They are clearly internal memos. Without such request, it is best to assume that the memos were obtained illegally,” he said.
She added that retaining the memos would jeopardise the work of the commission and infringe on the independence of the electoral bodies.
If the commission wanted the documents to be in public domain, the lawyer said, the documents would have been displayed on its website.
Secondly, President Kenyatta, through lawyer Fred Ngatia, wants some documents filed a day after the deadline struck out.
He said the annexures and the voluminous documents that were filed a day late should not be retained in the court record.
“I do not need to emphasise that the petition must be filed within seven days, a day which was to expire on the midnight of November 6,” Mr Ngatia argued.
The lawyer also wants an affidavit by James Ngodi in support of the petition by Njonjo Mue and Khelef Khalifa struck out.
He said retaining it and any reference would cause confusion because it is not part of the record.
“In the effect you remove the documents that were filed out of time, strike out some paragraphs because they speak to the documents in contention,” he said.
Lawyer Kimani Muhoro for IEBC supported the removal of the letters from the court records.
He said the said letters had been selectively introduced to create a narrative.
The lawyer said the court should abhor such conduct as the memos are inconclusive.
The petitioners, through lawyer Julie Soweto, opposed Mr Kenyatta’s application, saying he should not be the one arguing for the striking out of the documents because he is not the originator.
She said President Kenyatta has not shown the prejudice he was likely to suffer if the documents were retained.
Ms Soweto argued that the documents form a critical component of the petition, which seeks to show the impartiality of the commission.
She said that memos are already in the public domain.
The lawyer also explained to the judges the difficulties they encountered in filing the documents as she opposed claims of late filing.
Ms Soweto said her duty is to avail to the court sufficient copies of the petition, which they did.
“Justice should be administered without undue regard to procedural technicalities. This is a procedural technicality,” she said.
Not satisfied with the explanation, Chief Justice David Maraga asked Deputy Registrar Daniel ole Keiwua to state the correct position.
Mr Keiwua said the petitioners came up with two complete sets of the petition and brought the rest— five others— the following day.
The court— led by Judge Maraga, DCJ Philomena Mwilu, Justices Jackton Ojwang’, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola— will also hear 14 other applications before the hearing starts.