Supreme Court blow for Cord as judges reject new evidence


A sitting of the Supreme Court during a status conference on the presidential election petition on March 26, 2013. The court rejected Raila Odinga's application to admit additional evidence in his petition challenging IEBC's declaration of Uhuru Kenyatta as President-elect. Photo/BILLY MUTAI

Prime Minister Raila Odinga’s petition challenging the declaration of Uhuru Kenyatta as the winner of the March 4, 2013 presidential election suffered a major blow Tuesday after the Supreme Court rejected two pieces of evidence he had hoped to use for his case.

The Supreme Court dismissed Mr Odinga’s application for a forensic audit of the Independent Electoral and Boundaries Commission (IEBC) IT system, saying it was not practical.

“We are not persuaded that it (forensic audit) can be complied with. If it would have been filed together with the petition (during the seven days window) it could have been considered,” ruled the judges led by Supreme Court president, Chief Justice Willy Mutunga.

The six judges further expunged Mr Odinga’s 900-page replying affidavit because it was filed too late to allow the respondents to go through it and file replies in view of the tight timelines for determining a presidential election petition.

“If we allow the affidavit, it will be prejudicial to the respondents and can lead to miscarriage of justice... we hereby expunge from the affidavit sworn on March 22, together with six other annexed affidavit,” said the judges in a ruling read by Justice Philip Tunoi. In addition, Mr Odinga will bear the cost relating to the arguments on the affidavits.

The respondents — IEBC, its chairman Ahmed Issack Hassan, Mr Kenyatta and Deputy President-elect William Ruto — objected to the application on the grounds that it was made out of the seven days window from the declaration of the election results.

On the forensic audit the judges in a ruling read by Justice Mohammed Ibrahim said they were not persuaded that the relief sought could be complied with.

The Supreme Court has up to Saturday to make its final decision. Tuesday was the last day of the two-day pre-trial conference, paving way for the consolidated petitions to be heard Wednesday and Thursday.

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Rejecting the affidavit filed last Saturday in response to the submission by IEBC, the Judges said Mr Odinga should have sought the leave of the court to file the further affidavit, to which six others were annexed.

The affidavit was opposed by the respondents because it introduced new evidence on 122 electoral areas which was not mentioned in the core petition and was time-barred.

But Odinga, through his lead counsel George Oraro, submitted that the delay was occasioned by failure of IEBC to supply the sought materials in time.

Mr Odinga had hoped to establish why the electronic systems deployed during the elections failed in line with his assertion that the systems were designed to fail from the very beginning.

He had sought all Media Access Control and Internet Protocol addresses for all mobile devices used for electronic voter identification at all 33,400 polling stations across the country, Satellite Mobile Telephone handsets used for results transmission, SIM cards, laptops, desktop computers, and all servers on which the electronic data transfer for IEBC occurred.

He further sought an order for the commission to disclose confidentially to the Supreme Court a catalogue of the names of users and passwords assigned to all users at each of the IEBC offices, places of operation and all the 33,400 polling stations.

Mr Fred Ngatia, lead counsel for Mr Kenyatta, asked the court to reject the application since it asked parties not before the court to be compelled to produce information.

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