The High Court in Kerugoya has allowed Martha Karua’s application to have findings on scrutiny of election materials used in the Kirinyaga 2017 gubernatorial poll admitted in court as evidence.
The audit report by the court’s deputy registrar will form part of the evidence in the petition filed by Ms Karua against the election of Governor Anne Waiguru.
Justice Lucy Gitari, however, declined to allow Ms Karua’s version of the scrutiny report, saying it would amount to filing new evidence in the petition.
“The dispute is that the petitioner’s report is not what was emailed by the registrar to the parties. The respondents said they would agree to the registrar’s report only,” said justice Gitari.
She allowed Ms Karua to continue testifying in the petition and make comments on the scrutiny report.
Ms Karua, in her evidence, protested that during the audit exercise the electoral commission denied her access to all the Kenya Intergrated Electronic Management System (Kiems) kits and statutory election forms 37A used in the disputed election.
The Independent Electoral and Boundaries Commission (IEBC) and Ms Waiguru had opposed Ms Karua’s application and wanted it dismissed by the court.
Through lawyers Paul Nyamondi and Joe Kathungu, the two argued that the application was prejudicial to their clients and wastage of judicial time.
“The petitioner wants to be granted time to introduce new evidence and additional affidavits. She made a similar application on September 14, 2017 and the request was rejected by the court after a finding that it would amount to allowing new evidence,” said Mr Nyamondi.
He added that Ms Karua wants to procure more evidence to prove her claims that Ms Waiguru was not validly elected.
‘BACK DOOR’
“She cannot look for evidence when the petition is already in court. She wants to adduce new evidence through the back door,” said Mr Nyamondi.
He told the court that Ms Karua’s version of the report on audit of the voting materials was adulterated stating that he was not opposed to production of a pure report.
In her application, Ms Karua and her lawyer Charles Kihara insisted they should be allowed to file more affidavits and the audit report be admitted as part of the case proceedings.
“Rules of the court delegate scrutiny matters to the deputy registrar, who must report back to the court on the findings. If that is not the case then the scrutiny is effort in futility,” said Ms Karua.
She added that the electoral agency is not supposed to oppose presentation of the report since it is an independent body.
PROBE
“It is amazing for IEBC to oppose admission of the findings in court. If indeed elections were conducted in accordance with the law, they should be eager to have it produced. Their objection is to tell the court that they are hiding something and wants court assistance to continue hiding the information,” stated Ms Karua.
She further denied that she was intending to procure more evidence in the petition.
“Scrutiny is an investigation exercise whose report will tell the court veracity of the complaints,” she said.
The hearing will continue on May 2.