Nasa presidential candidate Raila Odinga wants the Supreme Court to order the electoral commission to hand over the 40,883 gadgets used to identify voters and transmit the results of the General Election.
Mr Odinga and his running mate Kalonzo Musyoka have also asked the court to have the Independent Electoral and Boundaries Commission make available all the logs of servers it used in managing the elections.
Their prayers are contained in the petition filed at the Supreme Court on Friday night, hours to the deadline, and are two of the 14 reliefs sought by Nasa as it seeks to have the declaration that President Kenyatta has been re-elected declared null and void.
In the petition, Nasa’s specific prayers regarding the equipment, servers and logs is that the court have them handed over within 48 hours of filing of the case.
“The demand by Nasa would run from when they are served with the papers because if they have not been served, they would not be able to know what Nasa is demanding,” said lawyer James Mwamu.
With the gadgets used in all corners of the country, the demand could create a difficulty equal to the one for the voters’ register in the 2013 case that the electoral commission said would need a lot more time than was available to prepare.
Mr Paul Nyamodi, the IEBC lawyer, had at that time said the register was in 700,000 parts and kept in the polling areas.
“If the IEBC says, ‘Look, we don’t have these things and we need time,’ their lawyers will still make that report and say their clients will need more time,” said Mr Mwamu.
Mr Mwamu said the court would have to decide on what is unreasonable regarding such a demand.
The Supreme Court in 2013 threw out a voluminous affidavit on the basis that it had been filed out of time.
In bringing a pile of documents to the court on Friday night, the Opposition appeared to have learnt a lesson from that time.
Mr Mwamu said the court would likely be careful not to be seen as relying on technicalities and showing favouritism to the IEBC.
“I think the court will bend over backwards just to ensure that it is not accused of showing favouritism to one side. I think it will do everything that is in its power to do to ensure that what is practical and what is reasonable is given,” he said.
The 40,883 gadgets were used to transmit the results as well as the images of the Forms 34A, which the IEBC said was the basis for the provisional results displayed on its portal.
By 5.30pm Sunday, results from three kits were yet to be displayed on the portal.
The forms were also physically transported to the constituency tallying centres and used to compile Forms 34B.
The 290 Forms 34B would then be the basis of the results announced at the National Tallying Centre by the IEBC chairman.
Mr Odinga says in his petition that when the IEBC started displaying the results, it did not have the images of the forms taken using the gadgets and instead relied on unverified information.
The lawyers handling the petition, Murumba and Awele Advocates, Sunday published an advertisement in the Standard notifying the IEBC, its chairman Wafula Chebukati and President Kenyatta of their petition.
They asked the respondents to pick up copies of the petition, supporting affidavits and annexures from their offices at Mirage Plaza in Westlands.
The commission, however, said Sunday evening that the said officers were closed.
The Supreme Court rules also require that the respondents have a copy of the petition within six hours of the filing.
The respondents are required to file their response within four days of being served with the petition.
Even with all this, the first face-to-face meeting of all the parties with the judges will likely be at the pre-trial conference on Saturday, eight days after the filing of the petition — the opportunity for the court to direct the commission on the handling of the election materials.
Among the reliefs sought by Mr Odinga is a declaration that all the respondents “jointly and severally committed election irregularities.”
For Mr Chebukati, this would mean that there would be grounds for his removal while he certainly would not be eligible to oversee the repeat election that would then be held.
Matter also to rely on purportedly side-lined election officials and party agents.