Nasa leader Raila Odinga has scored a first-round victory after the Supreme Court allowed his team to access the electoral commission servers and other technological kits for a systems audit.
In a unanimous decision, the seven judges of the court said they had granted the petitioner orders of access because understanding how the systems work will help the court come to a fair decision in the hearing of the petition.
However, the orders were not absolute, as the orders were limited to only aspects that will not compromise the commission’s electoral management systems.
The access will also be read-only, according to the court.
The court further rejected another prayer from Mr Odinga that would have allowed him to file an affidavit arising from the outcome of the system audit.
Reading the ruling on behalf of his colleagues, Justice Isaac Lenaola said the new affidavits will introduce new evidence and further delay the hearing with only four days to the deadline of determining the petition.
However, the ruling is a big win for Nasa and Mr Odinga who has constantly insisted that technology was used to rig the election in favour of President Kenyatta.
He has also claimed that the data and information recorded in Forms 34A at the individual polling stations were not accurately and transparently entered into the KIEMS kit at the individual polling stations.
He has also alleged that that in more than 10,000 polling stations, the data entered into the KIEMS kits was not consistent with the information and data from the respective Forms 34A.
Mr Odinga has also alleged that results from some of the results were relayed from ungazetted areas and the system was configured to give an 11 per cent margin between him and President Kenyatta.
He has termed President Kenyatta and his deputy as computer-generated leaders “vifaranga vya computer”, a remark described by President Kenyatta in his affidavit as demeaning.
The Nasa presidential candidate said the end result points to the fact that there was interference with the KIEMS system, to perpetuate the fraud.
He was present in court on Monday, together with his co-principals Musalia Mudavadi, Moses Wetang'ula and Mombasa Governor Hassan Joho,
IEBC and President Kenyatta had opposed the application, arguing that Mr Odinga was engaging in a wild goose chase.
“Regarding prayer 3(a), the same is impractical and difficult to grant because Safron Identity and Security, it was submitted by counsel for the 1st and 3rd respondents, is a software company based in France and not being party to these proceedings, to demand that “persons and systems” related to it should be accessed by the petitioners is impractical and may unnecessarily delay the hearing and determination of the petition,” the judges said.
Giving the directives, the court said, the exercise will be supervised by the Registrar of the Supreme Court and the court-appointed ICT experts.
Parties will also send their representatives to oversee the exercise which will be carried out at a venue to be decided by the registrar.
The court further ordered the commission to grant the Nasa team reading devices to distinguish the authenticity of the all documents they will be offered.
The judges allowed Nasa to get information relating to the number of firewalls without disclosure of the software version, the operating systems without releasing the software version, the password policy and password matrix.
The court also allowed Nasa to have limited access system user types and levels of access, the IEBC Election Technology System Redundancy Plan, comprising its business continuity plan and disaster recovery plan.
The team will also scrutinise the certified copies of certificates of penetration tests conducted on the IEBC election technology system prior to and during the 2017 general and presidential election.
These include certified copies of all reports prepared by the electoral body, certified copies of certificate(s) by a professional(s) prepared pursuant to Regulation 10(2) of the Elections (Technology) Regulations, 2017.
Others are the specific GPRS location of each KIEMS kit used during the presidential election for the period between and including August 5 and August 11 this year and certified list of all KIEMS kits procured but not used and/or deployed during the election.
What Nasa has been allowed to access
Number of servers used in the August 8 polls
Firewalls used to protect the Kenya Integrated Election Management Systems (KIEMS) from hackers.
Operating system of KIEMS
Passwords policy and matrix
User types on KIEMS
IEBC's ICT redundancy plan
Certified copies of penetration tests conducted prior to and during August 8 elections
GPRS locations of KIEMS.
Polling stations and their allocation
IEBC technical agreements with providers
Log-ins and trail of users of KIEMS between August 5 until now.
Original and certified copies of forms 34A and 34B used to declare results.