Senior Counsel Fred Ngatia is well known in the legal circles and it was obvious when Raila Odinga filed his petition that President Kenyatta would once again go for him.
When he stood to address Supreme Court’s seven-member bench, Mr Ngatia’s first salvo was to try and weaken the petitioner’s case by knocking out documents filed out of time.
He didn’t go far since the court seemed to depart from the Mutunga’s court technicalities which knocked out some of Raila Odinga’s affidavit in 2013.
Mr Odinga’s lawyers had sought to knock out Mr Kenyatta’s and IEBC’s affidavits too, arguing that they were served to the petitioners out of time.
Mr Ngatia told the court that Mr Odinga’s lawyers closed down their office and as a result they could not serve them within the deadline.
He told the court Mr Kenyatta’s lawyers had waited for Mr Odinga’s lawyers on the night they were served.
The Supreme Court saved the entire case by ruling that were Mr Odinga’s prayers granted, “it would dispose of the entire case” of IEBC, its chairman Wafula Chebukati and President Uhuru Kenyatta at the preliminary stage.
“Such a drastic consequence in our view cannot be justified if the scales of justice are weighed in favour of all the parties to this petition,” said the court.
Having survived this legal scare, which could have damaged their case, the lawyers for the three respondents worked to respond to Mr Odinga’s accusations.
The first off the block was Paul Muite for IEBC who surprised everyone –Mr Ngatia said as much – when he agreed to Mr Odinga’s demands that IEBC grants the petitioner access to the servers and the Forms 34B for scrutiny.
The bone of contention was whether there was anything amiss with the transmission of these results and whether that was in accordance with provisions of the Constitution, the Election laws and decision of the Court of Appeal.
The Court of Appeal decision known as Independent Electoral and Boundaries Commission v. Maina Kiai became an important part of the argument in the submission of both Mr Muite and Mr Ngatia.
Mr Muite told the court that the Maina Kiai decision made presidential results announced at the Constituency level final and nobody could interfere with them.
He said that this also eliminated the provisional results – he contended that these were mere statistics – when they were entered into the Kenya Integrated Elections Management Systems (Kiems).
It is this issue that was taken over by Mr Ngatia who argued that the entire voting method was “simple, accurate, verifiable, secure and transparent.”
“You are now being asked to interfere with people’s will,” Mr Ngatia told the court. “The petitioner is seeking to invalidate which was otherwise a valid election.”
Mr Ngatia said that unlike other elections tackled at the High Court, the Presidential election should not be based “on qualitative approaches” arguing that it should be based on the Constitution.
He submitted that Nasa agents were present in 84 per cent of polling stations and they signed the declaration of presidential results in 93.8 per cent of the polling stations where they were present.
On Jubilee, he said the were present in 92.3 per cent of all polling stations and they signed in 95.8 per cent of those polling stations.
It was Ngatia’s submission that Mr Odinga’s agent agreed to the primary results.
While Mr Odinga had complained that results started streaming very early at 5.07pm, Mr Ngatia told the court that this should not have been a complain but a compliment.
He said that this polling station had 10 votes cast. “How long does it take to count ten ballot papers?”
For PLO Lumumba, appearing for IEBC, he said that Mr Odinga’s affidavit as a “fishing expedition” and as an “afterthought.”
Mr Lumumba also said the petitioner had told the court that of the 15 million votes only 2,300 votes were in doubt. “No court has ever nullified a presidential petition on what falls under de minimis rule,” he said.
It’s race against time as Supreme Court judges retreat to write their judgements.