The Supreme Court has allowed the individuals challenging the re-election of President Uhuru Kenyatta access to the forms on which the results of the October 26 election were recorded.
The judges however unanimously declined to grant them access to the technological side – the gadgets used to identify voters and transmit the results, logs from those devices, the memory cards, servers on which the information was stored and details of the transmission of results.
Chief Justice David Maraga has ordered lawyers for petitioners, Njonjo Mue and Khelef Khalifa to report back their findings by 3pm tomorrow.
The judges’ ruling on the application was read by Justice Smokin Wanjala, who said their decision was guided by the documents submitted on the matter, the arguments in the court and the decision in a similar case in August.
REGISTER
“The (IEBC) is hereby ordered to grant access to all original Forms 34A, Forms 34B, Form 34C. The (IEBC) is also to avail a certified copy of the voters’ register at the costs of the petitioner. The remaining prayers are hereby declined,” he said.
Justice Wanjala said the detailed reasoning for the refusal would be given in the full ruling but said some of the reasons were that it would be impossible to fulfil them in the short time available, the request was not particular and that some “were couched in such general terms as to amount to fishing expeditions.”
Justice Maraga ordered the IEBC’s lawyer, Waweru Gatonye, to ensure his clients give the petitioners’ team, headed by Harun Ndubi, access to the forms and the register, which were reported to be in their warehouses.
He said the petitioners and President Kenyatta should have seven people each to do the job and the IEBC as many people as they need to assist them do their job.
“Please arrange for somebody to open where they are, send your representatives. If he wants to make a copy, let them do that,” said Justice Maraga.
He also noted that the IEBC had said in its submissions that it would cost millions to make a copy of the register with more than 19 million people registered.
Fred Ngatia, President Kenyatta’s lawyers, said they would want to be present and to have a recording of what happens at the IEBC warehouse done.
‘UNFAIR’
The court dismissed applications by Stephen Owoko and Caleb Wamaya, who wanted to join the case as interested parties.
Justice Jackton Ojwang said Mr Owoko’s request could not be accommodated because the court’s resources and time are now directed at the petition, which has a limited period for hearing and determination.
Mr Wamaya rose to complain, saying the judges were unfair to him and denied him an opportunity to get justice.
But Justice Maraga was unmoved and unimpressed and told him off.
“What you do: find a way, talk to MPs and ask them to change the law to give us a full year to listen to cases like this,” said the Chief Justice.
Justice Maraga had on Tuesday night told another applicant that given that he is just one of 19 million registered voters, allowing him to join the case would be tantamount to opening the doors to all others and it would take a long time if every one was allowed to make their submissions on such a matter.