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Lawyers differ on late submissions as NASA Presidential case begins

NASA leader Raila Odinga’s legal team has demanded to be given unfettered access to IEBC servers.

The lawyers claimed that forged documents were used to rig the elections in favour of President Uhuru Kenyatta.

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However, IEBC lead counsel Paul Muite asked the Supreme Court not to allow the petitioners to go on a fishing expedition because they have the burden of proving their evidence.

NASA’s lead counsel James Orengo on Saturday sensationally told the court that the Forms 34A and 34B used by the IEBC to tally presidential election results had irregular or missing security features.

Mr Orengo further told the court that names of presidential candidates did not appear in the right order on the forms. He wants the court to order the electoral commission to avail original Forms 34A and 34Bs.

“What we are seeking is that the original Forms 34A and 34B be made available to this court. Forms delivered by IEBC to this court were either forged or are not authentic. We want the originals because what we have is not,” he said.

When the judges asked him what time he would require to examine the servers and the forms, Orengo said between 30 minutes to one hour, then a day on servers before he ultimately said he would require at least three days to conduct the exercise.

Shortly after the pre-trial conference commenced, lawyers Fred Ngatia, James Orengo, Paul Muite and Attorney General Githu Muigai among others argued on applications to strike out certain documents either because they were allegedly filed late or were not served on time or never served at all.

Chief Justice David Maraga however said the court will deliver a rulings on various applications today.

At exactly 7.35pm, the Supreme Court judges strolled into the packed courtroom, signalling the start of a bruising battle to determine the presidential election petition.

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The deathly silence that followed as everyone stood and bowed as a sign of respect to justice showed the anxiety with which all the parties in the petition were rearing to lay bare their case.

Soon after, the judges kicked off what would determine the country’s political direction and destiny in the next seven days.

As soon as the Chief Justice opened the floor to the battery of lawyers, it became evident that it would be a battle of senior counsels, robbed in black and white, to renew rivalry in legal practice.

Backed up by their junior apprentices, each legal team set out to prove it was not only ready to win the case for the clients but also to prove that they are still the kings in Kenya’s legal profession.

NASA was led by senior counsels Pheroze Nowrejee and Orengo, two of the country fiery lawyers who withered the storms of clamour for multi-party democracy. Senior counsel Okongo Omogeni and 16 other lawyers are also part of the legal team.

Uhuru Kenyatta’s Jubilee side had the leanest team compromising senior counsels Fred Ngatia, Ahmednassir Abdullahi, and Ken Ogeto.

Senior counsels Paul Muite and Lucy Kambuni led the IEBC which had five other lawyers while the commission’s chairman Wafula Chebukati appointed senior counsel PLO Lumumba to lead lawyers Kamau Karori, Issa Mansur and Peter Wanyama.

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Attorney General Githu Muigai was leading a team of lawyers who wanted to join the petition including Stephen Mwenesi for Law Society of Kenya, Elias Mutuma for Dr Ekuru Aukot and Charles Kanjama.

Soon after the introduction, the animosity between the legal teams and the magnitude in which they prepared to defend their clients became clear, forcing the CJ to cool down the tempers.

“We know this is not an ordinary case and understand the emotions it has brought. But we appeal to the lawyers not to carry the emotions of their clients to court and conduct themselves with decorum and respect for each other,” said Maraga.

To set the ball rolling, the Supreme Court judges directed that they will not hear oral arguments for parties who have applied to be joined but will issue a decision on whether to allow them in the case based on the written submissions they filed.

On the second issue on preliminary applications filed by NASA and Jubilee to strike out some documents, the lawyers could not agree to a proposal by the CJ for them to withdraw the applications and concentrate on the main petition by Raila challenging Kenyatta’s win.

IEBC’s lawyer Issa Mansur argued that their application to have some affidavits filed by NASA be struck out was important as it affects the entire petition.

“Our position is that the extra affidavits by NASA were filed outside the time set and introduced new evidence which we were not able to respond to. We will be prejudiced if they are not struck out and allowed to proceed with it,” said Mansur.

But NASA’s Otiende Amollo said the electoral commission’s fears were based on misconception since the new evidence was not in support of the main petition but in support of another application to be allowed to audit IEBC forms filed in court.

“We are willing to forgo the preliminary applications and go the substratum of the case. It is like the respondents want us to dwell on technicalities which will only delay the proceedings,” said Mr Amollo.

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But Mr Ngatia insisted that the new evidence by NASA must be struck out because they have not had a chance to respond to them.

When IEBC and Jubilee insisted that NASA’s affidavits be struck out, the opposition also hit back with a similar application to have some documents filed by IEBC struck out for being filed after the deadline.

NASA’s Jackson Awele argued that the documents filed by IEBC went to the core of the case and since they were filed out time, they have not had a chance to respond to them and should be struck out.

The Supreme Court Judges Maraga, Philomena Mwilu, Jackton Ojwang, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola said they will rule tomorrow whether to allow or strike out the new evidence introduced by the parties.

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