The hearing of the Kenyan Presidential Election petition in the Supreme Court starts on Wednesday after the mode of operation of the petition was agreed in the pretrial conference Tuesday.
During the pretrial conference, the parties to the case agreed with the Court on how the petition will be handled, including the number of lawyers who will speak from each side, for how long each will speak, what the issues to be determined are, as well as harmonizing and consolidating the petitions. The Supreme Court has framed nine issues for determining the petition which was filed by Raila Odinga who was announced runner-up behind William Ruto.
Odinga and his running mate Martha Karua, are seeking to overturn the victory of Ruto and his deputy Rigathi Gachagua.
Before arriving at the decision on whether or not to overturn the election result, Chief Justice Martha Koome’s seven-member panel will have to rule on each of the nine issues including whether there was interference with the uploading and transmission of Forms 34A from the polling stations to the IEBC Public Portal.
They will also have to decide whether the technology deployed by the IEBC for the conduct of the polls met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results.
The other issue is whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and Forms 34A received at the National Tallying Centre and Forms 34A issued to the Agents at the Polling Stations.
These were some of the issues that have been presented by the petitioners claiming that they could have influenced the final tally.
Others are whether the postponement of elections of governors in Kakamega and Mombasa Counties, Parliamentary elections in Kitui Rural, Kacheliba Rongai, and Pokot South Constituencies, and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency resulted in “voter suppression to the detriment of the Petitioners in Petition No. E005 of 2022”.
Others allowed for determination are whether there were unexplainable discrepancies between the votes cast for presidential candidates and other elective positions and whether the IEBC carried out the verification, tallying, and declaration of results in accordance with Article 138 (3) (c) and 138 (10) of the Constitution
The court will also determine whether Ruto attained the 50 percent plus one vote of all the votes cast in accordance with Article 138 (4) of the Constitution and whether there were irregularities and illegalities significant enough to affect the final result of the polls.
The final issue will be what reliefs and orders the court can grant or issue.
During the pretrial conference, the judges agreed on seven petitions for hearing after striking out three and consolidating the others, saying that they raised similar issues and sought the same orders.
The court also allowed and directed some applications, including that the IEBC give candidate Odinga access to any server at the national tallying center that may have been used for storing and transmitting voting information.
It also granted Odinga’s wish that the election agency gives him access to ballot boxes from 15 select polling stations for scrutiny and recount of the ballots.
The IEBC was ordered to give Odinga access to any servers that may be storing forensically imaged information used to capture a copy of Form 34C, which has the total votes cast.
The IEBC has also been ordered to provide them with copies of its technology system security policy comprising password policy, password matrix, and the owners of system administration password, among others.
The applications rejected by the Supreme Court Court include Ruto’s bid to bar the Law Society of Kenya from being enjoined in the petition with Odinga.
The other is the petition by former MPs Moses Kuria and Geoffrey King’ang’i, who wanted the court to throw out Odinga’s suit on the grounds that he was involved in election malpractices.
Presidential candidate David Mwaure of Agano Party was also barred from being enjoined in the case. Mwaure has said in his view Ruto won the elections.
An application to block individual IEBC commissioners from the petition was also rejected.
The application to admit on record the replying affidavits of the four dissenting IEBC commissioners; Juliana Cherera, Justus Nyang’aya, Francis Wanderi, and Irene Masit was allowed.
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