The Supreme Court has ordered a re-tallying of presidential election results in 22 polling stations to ascertain whether the votes cast exceeded the number of registered voters.
The court also ordered the scrutiny of Forms 34 from all the 33,400 polling stations and all Forms 36 used in the tallying of presidential votes.
“The parties are directed to jointly appoint 10 agents to act as observers. The result must be filed at the court registry by 4pm on Wednesday,” ruled Judge Wanjala.
Judge Wanjala said an oath of secrecy and confidentiality would be administered to the agents Tuesday morning by the registrar before the recount starts.
“The tallying will be done at a place chosen by the registrar,” ruled Mr Justice Wanjala. The affected polling stations are spread across the country.
Judge Wanjala made the ruling in the presence of his Supreme Court colleagues Jacton Ojwang, Philip Tunoi, Njoki Ndung’u and Mohammed Ibrahim and Chief Justice Willy Mutunga.
The judges said there would be scrutiny of all Form 34s and Forms 36 which were used by the polls agency IEBC in tallying presidential votes from all polling stations and the diaspora to establish valid votes cast, registered number of voters and votes cast.
The ruling came as President-elect Uhuru Kenyatta and Prime Minister Raila Odinga differed sharply over the issues that the Supreme Court should determine in the presidential election petitions.
The Supreme Court framed 14 issues for determination but Mr Kenyatta, the Independent Electoral and Boundaries Commission (IEBC) and its chairman Issack Hassan and deputy president-elect William Ruto said some of the issues had been left out.
Three voters contesting the role of rejected votes in the tallying also wanted the scope of issues for determination broadened.
However, Mr Odinga’s Coalition for Reform and Democracy (Cord) and Africa Centre for Open Governance (Africog), the civil society organisation challenging the tallying process, was happy with the issues as framed.
The judges directed the counsels representing the parties to meet over the issues for determination and report back on areas of consent. The court, which intends to further narrow down the issues for determination to five or less, would then rule on the sticking points.
“Meet and agree on the issues for determination then anything that you disagree upon we will determine (in the court),” said the Chief Justice.
Mr Kenyatta’s lawyer Fred Ngatia said the issues as drafted concentrated only on Mr Odinga’s petition and did not capture matters of jurisdiction that the respondents raised. “We must look at the issues which legitimately can be canvassed before the Supreme Court,” said Mr Ngatia.
IEBC through its counsel Orelio Rebello and its chairperson through his lawyer Ahmednassir Abdullahi agreed with Mr Ngatia that some issues had been left out.
On Tuesday morning, Mr Odinga and Africog opposed the applications by Attorney General Githu Muigai to be enjoined in the case, saying he was not as non-partisan as he claimed.
George Oraro, Odinga’s lead counsel, and Kethi Kilonzo, Africog lead counsel, said the AG had been advising the President-elect and had given IEBC advice including on the validity of rejected votes.
Prof Muigai denied that he had advised Mr Kenyatta.They said the application should be rejected and the AG allowed audience through IEBC which is a constitutional body.
Other parties did not object to Prof Muigai’s involvement so long as he remained impartial. The AG assured the Bench that he would not be partisan and was admitted as amicus curae or a friend of the court.
A similar application by Law Society of Kenya (LSK) was rejected by all the parties after the society publicly declared that it would audit the electoral process.
Mr Hassan also relied on the LSK election observer report in his response while the society’s vice chairperson Lillian Omondi had filed an affidavit in support of Mr Odinga. The judges rejected LSK’s participation in the case and ordered that three petitions be consolidated.
The affidavit filed by Mr Odinga in reply to IEBC’s response came under attack from the respondents for introducing issues on 122 electoral areas that had not been mentioned in earlier petitions.
The court will rule on Tuesday whether the affidavit should be admitted whether another petition contesting the qualifications of the presidential candidates would be enjoined to the cases.