Clerks, researchers in nullified poll case transferred - Daily Nation

Clerks, researchers in nullified poll case transferred

Sunday November 26 2017

Supreme Court Registrar Esther Nyaiyaki

Supreme Court Registrar Esther Nyaiyaki addresses a pre-trial conference at the Court on August 26, 2017 before the start of the presidential election petition hearing. She seemed to have taken a low profile in the recent petition. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP 

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At least six court clerks and all research assistants involved in steering and drafting the September 1 judgment that nullified the August 8 presidential election have either been transferred or dropped.

The Sunday Nation has learnt that two court clerks have already been transferred to new stations while four of their colleagues have received letters but are yet to be moved.

One clerk was sent to Kajiado law court while another was transferred to Nakuru.

Meanwhile, none of the researchers seconded to the Supreme Court to assist the judges during the election petition filed by Nasa leaders Raila Odinga and Kalonzo Musyoka was involved in the second election petition that challenged the October 26 repeat presidential election.

Similarly, Supreme Court Registrar Esther Nyaiyaki, whose report on the scrutiny of results declaration forms caused a stir, seems to have taken a low profile after being subjected to verbal attacks by Jubilee sympathisers over accusations that she doctored a report that was used in the nullification of the August 8 presidential election.

The Judiciary has, however, defended her, stating that she conducted the exercise under the directive of the court.

On August 28, the court ordered Ms Nyaiyaki to supervise “access to certified copies of original Forms 34A and 34B”.

Contacted, Chief Registrar of the Judiciary Anne Amadi, however, denied that some staff had been dropped.

“No staff has been dropped,” Ms Amadi said.

She said that contrary to public perceptions, Ms Nyaiyaki “was fully involved in the second petition” much as it was evident that deputy registrar Daniel ole Keiwua was the one who received the filings, unlike in the first petition.

Each judge is often assigned two legal research assistants to help write draft judgments, known in judiciary circles as bench memos.

But to speed up the huge workload during the presidential election petition, each judge was given an additional two research assistants.

Some of the researchers were taken from other courts, especially the Court of Appeal.

To understand complex IT issues, Chief Justice David Maraga sourced assistance from IT experts, while others were seconded from the Communications Authority of Kenya.

But when the two election petitions were filed after the repeat poll, all the researchers seconded to the Supreme Court were not involved.

The source said it was either because they leaked the draft judgments or were suspected to be close to politicians.

The affected researchers have been trusted assistants to the judges, with some having moved with them from the lower courts.

Some of the clerks were allegedly transferred because of reportedly assisting Lady Justice Njoki Ndung’u get soft and hard copies of the forms without notifying Ms Nyaiyaki.

Ms Nyaiyaki and her team did a random scrutiny of 4,299 Forms 34A across five counties.


The team found that five of the forms had not been signed as the report presented by the Registrar, 56 of them bore no watermarks, 31 forms had no serial numbers, while 32 forms had not been signed by party agents.

In her dissenting opinion, Lady Justice Ndung’u said she went through the five controversial forms, including the ones from Kisauni and Likoni in Mombasa County, and found that they had been signed, contrary to the report presented by Ms Nyaiyaki.

“As regards the complaint regarding Kisauni, once again, I took the liberty to retrieve this form from the evidence deposited in court by the 1st Respondent… Thus I was able, as a judge sitting on an election case, to verify the issue in question,” she said.

In the petition, Mr Odinga had asked the court for scrutiny and audit of all returns of the presidential election, including but not limited to Forms 34A, 34B and 34C.

The prayer was rejected and the court directed Ms Nyaiyaki to supervise access of the forms at a location to be agreed by the parties.

The Ethics and Anti-Corruption Commission (EACC) has started investigations into the alleged forgery and falsification of forms, following a complaint by Mr Rashid Mohamed.