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High expectations as judges give ruling on NASA request to audit election materials

NASA had petitioned the court to allow auditing of forms 34A and 34B, IEBC servers and logs

Attorney General and the Law Society of Kenya admitted as friends of the court

Court dismisses all applications that sought to expunge some documents and affidavits filed outside the timelines.

The Supreme Court deferred a ruling on whether it will allow the National Super Alliance to audit electoral materials to this morning as it allowed various parties to join the presidential election petition.

According to Chief Justice David Maraga, the application by NASA leaders Raila Odinga and Kalonzo Musyoka had many issues the judges need to consider and which they did not finish in time to deliver a ruling.

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Auditing of forms 34A and 34B and IEBC servers and logs is at the centre of NASA’s claims of irregularities and inconsistencies during the elections, and the results would be key in determining whether they will prove their case to warrant invalidating the elections.

In the event that the judges allow the application, all focus will be on the outcome and the discoveries claimed by NASA but if the application is dismissed, the coalition will have to rely on the evidence it has filed so far.

At the same time, the judges dismissed all applications that sought to expunge some documents and affidavits filed by the parties outside the timelines.

Both the IEBC and Jubilee had asked the court to expunge some documents and new evidence filed by NASA after the expiry of their timeline, while the Opposition also wanted some documents filed by IEBC and Jubilee struck out of the court records.

“We have considered the applications and the contest that they were filed out of time. We, however, find that the documents will not undermine the court’s ability to determine the case and no party will suffer prejudice if they are retained in the court records,” ruled the judges.

They added that allowing NASA’s request to expunge IEBC’s materials filed out of time will mean that the commission’s case has collapsed and they will have no defence.

The judges allowed Attorney General Githu Muigai to join the application as amicus curiae (friend of the court) despite opposition from NASA.

Prof Muigai will, however, have a limited role in helping the court make a determination of the dispute within the 20 minutes he was allocated.

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“We have noticed that many issues the AG wants to submit on have already been mentioned by the other parties in the case. We will allow him to participate but only limited to one issue of advising the court on the effect of the Court of Appeal decision on tallying of presidential results,” said Maraga.

The Law Society of Kenya was also allowed in as an amicus curiae, with the judges noting that the dispute was of great public interest touching on the people’s sovereignty, which justifies LSK’s participation.

Prof Michael Wainaina, an independent presidential candidate, was allowed to join as an interested party. The court ruled that having participated in the election, any outcome of the case will affect him, which justifies his inclusion.

Prof Wainaina, in his application, opposed NASA’s case and is siding with the Independent Electoral and Boundaries Commission to defend President Uhuru Kenyatta’s win.

Thirdway Alliance candidate Ekuru Aukot was also allowed to join as an interested party.

Dr Aukot, in his application, supported the NASA case, saying his party’s audit of the election results revealed irregularities which made the elections a fraud.

“Prof Wainaina and Dr Aukot actively participated in the elections and have a stake in the outcome of this petition. They are justified to join the petition as interested parties,” ruled the judges.

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Several other parties who had applied to be allowed to join were, however, unlucky as their applications were declined. They included lawyer Charles Kanjama, whose application was rejected on grounds that he has no expertise to bring to the case.

Others whose applications were denied were the Information Technology and Communication Association of Kenya, Mr Isaac Aluochie, and Mr Benjamin Wafula.

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