Kenya Election 2013 Petition...Uhuru and Ruto's victory upheld.

Kenya Election 2013 Petition...Uhuru and Ruto's victory upheld.

Supreme Court to rule on marked voter registers

By Wahome Thuku

Nairobi, Kenya: A local NGO, Africa Centre for Open Governance (AFRICOG) wants the Supreme Court to order the electoral commission to produce the manual marked registers used in the presidential polls on March 4.

Africog through lawyer Kethi Kilonzo claimed that there were discrepancies in the number of registered voters.

"The number of registered voters in 180 constituencies differs in what is contained in Form 36, there is a difference of 70,000 voters," she told the court.

She said the Independent Electoral and Boundaries Commission (IEBC) should produce the marked registers so as to verify the discrepancies.

Kilonzo said the marked registers should also be in custody of the court.

Kilonzo is representing Africog who are one of the petitioners who are challenging the election of Uhuru Kenyatta. Prime Minister Raila Odinga has also filed a petition.

But her application was opposed by other lawyers who termed it as late.

Lawyer Kamau Karuri representing IEBC said the request to produce the register was late and unreasonable.

He said the registers were in constituencies and it would take between 10 days to a week to get them.

The Supreme Court judges led by Chief Justice Willy Mutunga will deliver the ruling at 3pm.

Standard Digital News - Kenya : Supreme Court to rule on marked voter registers
 
Why is the IEBC refusing to handover thse registers until compelled by the courts to do so?

Then we also have the issue of the 'Green Book' which is a doctored register by the IEBC.
 
Tight security as re-tallying of presidential votes begins

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Observers and journalists wait for the announcement of results at the Bomas of Kenya national elections centre on March 6, 2013. There was tight security at the Kenyatta International Conference Centre, the venue of the presidential election vote re-tallying as ordered by the Supreme Court March 26, 2013. FILE NATION MEDIA GROUP

By LUCAS BARASA
Posted Tuesday, March 26 2013 at 10:41

There was tight security at the Kenyatta International Conference Centre, the venue of the presidential election vote re-tallying as ordered by the Supreme Court.

A contingent of General Service Unit, regular and administration police kept vigil as the re-tallying was going on.

Only the party agents, electoral commission and judiciary officials were allowed at the hall.

The media was not allowed to access the hall.

On Monday, the Supreme Court ordered the re-tallying of the presidential votes in 22 polling stations across the country.

The judges also ordered a fresh scrutiny of all the Form 34 used by the electoral commission in tallying the presidential votes in all the 33,000 polling centres across the country as well as the Form 36s used by entering presidential constituency results.

All reports and results must be filed with the court by 4 pm Wednesday.

Tight security as re-tallying of presidential votes begins - Politics - nation.co.ke



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Presidential poll re-tally underway

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By Pamela Chepkemei

NAIROBI, KENYA: The re-tallying of presidential votes from 22 polling stations as directed by the Supreme Court has commenced in Nairobi.

The exercise will also involve auditing of all the Forms 36 used by the Independent Electoral and Boundaries Commission (IEBC) in aggregating tallies from Forms 34.

On Monday, the court read out 22 polling stations in which re-tallying of presidential votes shall be conducted using the Forms 34 and 36.

Judiciary officials are conducting the exercise, but representatives from Independent electoral Commission (IEBC) and agents of the petitioners in the case are present at the Kenyatta International Conference Centre (KICC) venue.

The petitioners in the three consolidated petitions are required to jointly appoint ten agents as observers in the scrutiny exercise while all the four respondents shall also jointly appoint a similar number. Before commencing the re-tally, the agents took an oath of secrecy administered by the Registrar.

The swearing happened behind closed doors at the KICC early Tuesday morning. There is a heavy security presence at the KICC and journalists have also been barred from accessing the tallying venue.

The re-tallying was ordered by the Supreme Court on Monday to establish if votes cast exceeded the number of registered voters in those areas as claimed by Prime Minister Raila Odinga in the petition at the Supreme Court.

"That scrutiny shall aim at establishing the number of registered voters, the votes cast and the votes rejected," the court said in a directive read by Justice Smokin Wanjala.

Further the court shall scrutinise all the Forms 36 used by the Independent Electoral and Boundaries Commission (IEBC) in aggregating tallies from Forms 34. This would help in establishing the accuracy or inaccuracy of the process and comparing the number of registered voters on Form 34 and those on principal register.

The results of the scrutiny exercise will be filed at the court registry.

http://www.standardmedia.co.ke/?art...tle=Kenya-Presidential-poll-re-tally-underway-
 
Kuna mambo mengine bwana. Kuna mwanasiasa aiyetaka urais?Kutaka urais na kukubali kushindwa ni vitu viwili tofauti. Mnabisha Maalim Seif hakuwahi kushinda uchaguzi kule Zenj akadhulumiwa haki yake. Basi bisheni tena kuwa Odinga hakushinda ul uchaguzi wa 2007. Mmabo mengine waachienei wenyewe tu. Mechanics ya siasa za Kenya na utawala wao ni vigumu mtu asiye Kikuyu kushinda.
 
According to the court, the PM should have filed the affidavits while lodging his petition or sought for the leave of the court to file further affidavits/CFM
​
NAIROBI, Kenya, Mar 26 – Prime Minister Raila Odinga suffered a setback in his quest to challenge the election of Uhuru Kenyatta, after the Supreme Court expunged an additional affidavit he filed last Friday.According to the court, the PM should have filed the affidavits while lodging his petition or sought for the leave of the court to file further affidavits.

Reading the court decision, Justice Philip Tunoi said that another six affidavits which were attached to that of Odinga should be removed from the court records.
“If we allow the seven affidavits to remain on record the same will be prejudicial to the respondents and this will amount to a miscarriage of justice and we cannot allow for such in the circumstances”, the court ruled.
The court also ordered that Odinga pays the cost for the proceedings challenging the additional affidavit.
Odinga’s affidavit had introduced fresh evidence on alleged inconsistencies in presidential election results in 122 other polling stations.
The other six affidavits placed on record were from Oduor Ong’wen, the Director of Policy, Strategy and Research for the Odinga presidential campaign, ODM’s nominated Senator Janet Ongera, Lawrence Gumbe, Andrew Mwambogo, John Walubengo and Raj Pal Sena that had not been formally filed but annexed as exhibits.
The court said that it could not shoulder the burden of the omissions of the petitioners, who failed to make available all the affidavits in time or seek through an oral application, the leave of the court to file the affidavits.
Section six of the Supreme Court rules require a petition against the presidential election to be filed within seven days after the results are announced and that respondents have three days after service within which to respond to the petition.
According to the court, there is no provision for additional affidavits and it is left to the court’s discretion to determine the modalities of filing further evidence and affidavits.
“The court can exercise its powers and discretion to allow for further affidavits and evidence if it is specifically applied for, it is not a matter of right.”
“There must be a fair and level playing field so that neither the parties nor the court loses the time that they are entitled to and no extra burden should be imposed on the court or on the parties as a result of omissions or inadvertencies which were foreseeable,” the court asserted saying that the timelines for determining the petitions were ‘tight short and limited.’
The court said that the parties to the petition were obligated to abide by the set timelines in rules set governing the petitions just as the court was bound by the rules to make its decision.
The court ruled that the petitioner had used “the most unusual” way of availing as annexure or evidence as they could not stand on their own as evidence.
Respondents Uhuru Kenyatta, William Ruto, the Independent Electoral and Boundaries Commission (IEBC) and its chairman Issack Hassan had on Monday argued that they would be unable to respond within reasonable time to the bulky 839-page document.
The court affirmed positions held by the respondents saying that it acted with caution not to grant leave as the new material was so substantial that the respondents could not respond effectively.
Odinga’s lead counsel George Oraro had insisted that nothing barred him from adducing new pieces of evidence before the court and the pleadings in the petition he filed had not changed. He told the court that he had relied on material provide by the IEBC.
“The evidence is in conformity with the pleadings made in the petition. I am surprised by arguments of respondents’ counsel but the truth is that it all concerns why they want to put off the case,” he said adding that no provision in the rules prohibited a petitioner from filing a response to a replying affidavit.
“Nothing has been changed from the original petition unless the counsel wants to say that exhibits are produced in court for entertainment and not for interrogation and analysis,” he added.
Lawyer Fred Ngatia representing Kenyatta and Ahmednasir Abdullahi acting for Hassan argued that the new complaint altered the course of the case and that it will be impossible to file responses to a document they said was 900 pages.
“The court must make it clear if complaints brought in time can be amplified by other complaints brought in when they are time bound,” Ngatia urged the court, maintaining that a petitioner was bound by his original pleadings.


PM Odinga suffers setback in petition | Capital News
 
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Raila Odinga's lawyers George Oraro and Ochieng Oduol consult at the Supreme Court/ALI ALALE
​
NAIROBI, Kenya, – The Supreme Court judges on Tuesday afternoon rejected an application by Raila Odinga to carry out a forensic audit of the Independent Electoral and Boundaries Commission's (IEBC) Information Technology systems used during the elections.In a ruling read by Justice Mohammed Ibrahim, the court stated that the application argued by one of Odinga's lawyer Ochieng Oduol was time-barred.

"It becomes clear that the court cannot grant orders sought without seriously jeopardising the hearing of the petition. The application was filed four days after filing the petition," Ibrahim said.

The judges were of the view that the application would require the production of the entire of commission's IT system which could not be possible within the next 24 hours (that is before the start of the hearings scheduled for Wednesday).

"What the applicant seeks at this time of the day is what amounts to be the complete IT infrastructure of the IEBC. We are not persuaded such an order can be fully be complied with before the hearing of the petition."

The judges noted that if the applicant had made the application at the time of filing the petition, it would have been possible for the court to order IEBC to provide the forensic audit.

"The application was filed long after the petition on which the application is anchored. Coming at the pre-trial conference that is meant to prepare for the actual hearing of the petition, the application is hopelessly out of time and can only derail the fair and effective determination of the case," the judges said in reference to the arguments put forward by the respondents who opposed the application.

The application by Odinga's lawyer was also contested by other parties on the basis that it was directed to contractors of the IEBC who are not party to the petition before the Supreme Court.

"The latter are not parties to this petition and as such no order can be directed at them. The court should not issue orders whose reach affects persons who are not parties to this petition. The application is a mere fishing exercise in which the applicant is looking for evidence through the backdoor," the court said.

The judges agreed with arguments that the applicant did not explain who would carry out the forensic audit, how long it would take and the modalities that would be used to deliver the results from the requested audit.

Meanwhile, the judges also threw out an application by Katiba Institute and former CKRC Chairman Yash Pal Ghai to participate in the petition proceedings as a friend of the court.

Raila loses bid to audit IEBC technology | Capital News
 
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The court ruled that the application did not have a correlation to the matters before it/CFM

​
NAIROBI, Kenya, – The Supreme Court on Tuesday afternoon rejected an application by civil society group Katiba Institute, which sought to be admitted as amicus curiae in Petition 4.According to the court, the institute would not be enjoined following issues of impartiality raised by all the respondents in the cases.

The court ruled that the application did not have a correlation to the matters before it.

"While it is true that the Katiba Institute has previously enjoyed the status of amicus before this court it is clear to us that the adversarial matter before this court is different from a matter in which an advisory opinion is sought from this court," the judges ruled.

"Where in adversarial proceedings parties allege that a proposed applicant for amicus is biased or hostile to one or more parties or where in the applicant in previous conduct appears biased on the issues before court we must take the objection seriously. This court is convinced that the perception of bias and partisanship on the part of the applicant exists," Justice Njoki Ndung'u who read the ruling outlined.

The Katiba Institute is an organisation under the Kenyans for Peace with Truth and Justice Coalition which consists of up to 30 legal human rights and governance organisations which were convened after the 2007-8 post election violence.

The institute and Prof Yash Pal Ghai had told the court that they had been granted the status of amicus in other matters and that the case at the Supreme Court was not any different.

Lawyers representing three voters, the Independent Electoral and Boundaries Commission (IEBC) and those acting for the President-elect Uhuru Kenyatta and his deputy elect William Ruto had objected to the application saying that the organisation was not impartial.

Lawyer Njoroge Regeru representing the three voters, Dennis Itumbi, Moses Kuria and Florence Sergon insisted that the institute had already adopted known positions to some of the parties in the petition particularly President- elect Kenyatta and his deputy William Ruto.

"From the foregoing, the Katiba Institute does not qualify as amicus as it does not wear the neutral face of an amicus; they already have a stated agenda and interests," submitted Regeru.

Lawyer Kamau Karori appearing for the IEBC said that the institute had failed to disclose all its published articles, which he insisted communicated, an attitude the institute had formed on the commission.

According to Karori, Ghai, a former chairman of the Constitution Review of Kenya Commission, had a personal dilemma with IEBC chairman Issack Hassan.

"The applicant is a person who should file his own complaint; there was a duty on the applicant to disclose the attitude he holds on any of the parties already before court," Karori said adding that the institute had nothing new to present to the court.

Lawyers Fred Ngatia and Katwa Kigen appearing for Kenyatta and Ruto told the court that the Katiba Institute could not meet the test of impartiality following an article published late in 2012 talking of the implications of Kenyatta's presidency with his indictment at the International Criminal Court (ICC).

http://www.capitalfm.co.ke/news/2013/03/ghais-bid-to-join-poll-petitions-fails/
 
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The Supreme Court has rejected the application for the admission of the new evidence that Prime Minister Raila Odinga had through a sworn affidavit applied to admit to the court. The affidavits in question allegedly contained crucial evidence to back up his electoral fraud claims.

Apart from Odinga's affidavit, others rejected included those from ODM Executive Director Janet Ong'era, ODM Chief Agent at the March 4 polls Prof Larry Gumbe and director of policy and strategy at the Raila Odinga presidential campaign Oduor Ong'wen.

Also rejected were all-crucial affidavits from and IT security expert Raj Paal Senna and John Walubengo, a certified information systems auditor.

In the ruling read by justice Philip Tunoi the court stated that accepting the affidavits and by extension the new evidence would prejudice the respondents, Isaack Hassan, the IEBC, Uhuru Kenyatta and William Ruto.

The court further stated that the applications should have been made prior to the status conference hearing in order to be give due consideration.

The court adjourned to tomorrow 9 am when the petition hearing will officially begin as today was the last day of the status conference hearing. Tomorrow's session will take 15 hours with the time being allocated equally between the petitioners and the respondents.

http://www.the-star.co.ke/news/article-114055/supreme-court-rejects-cord-poll-petition-affidavits
 
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The Supreme Court has rejected Raila Odinga's application to admit additional evidence in his petitionchallenging the electoral commission's declaration of Uhuru as President-elect.

The judges ordered the 839-page affidavit to be expunged from the court records.

Earlier, the court struck out Mr Odinga’s application for a forensic audit of the IEBC Information Technology (IT) system.

The Supreme Court ruled that Mr Odinga's application was time barred and could therefore not be allowed.

The judges also rejected a request by Katiba Institute to be enjoined in the suit as 'amicus curiae' (friend of the court).

The court ruled that the Institute had shown bias against the third and fourth respondents who are Uhuru Kenyatta and William Ruto.

- Daily Nation
 
Mombasa Raha said:



The Supreme Court has rejected Raila Odinga's application to admit additional evidence in his petitionchallenging the electoral commission's declaration of Uhuru as President-elect.

The judges ordered the 839-page affidavit to be expunged from the court records.

Earlier, the court struck out Mr Odinga's application for a forensic audit of the IEBC Information Technology (IT) system.

The Supreme Court ruled that Mr Odinga's application was time barred and could therefore not be allowed.

The judges also rejected a request by Katiba Institute to be enjoined in the suit as 'amicus curiae' (friend of the court).

The court ruled that the Institute had shown bias against the third and fourth respondents who are Uhuru Kenyatta and William Ruto.

- Daily Nation
Click to expand...

Nadhani Timu ya Raila ilifanya kosa la msingi kutokufile kesi ya IT forensic inspection mapema, kwanini wlaichelewa namna hii?? Kila mtu alijua kuanzia pale tu matokeo yalipocheleweshwa kutolewa kuwa kuna mtu atakuwa amechezea System sasa imekuwaje wao hawakuweza kuona hilo?

Pia Je kwa ushahidi uliobaki sasa Timu ya Raila Odinga ina nafasi gani kwenye hii kesi?
 
[h=5][/h]


The Supreme Court has rejected Raila Odinga's application to admit additional evidence in his petition challenging the electoral commission's declaration of Uhuru as President-elect.

The judges ordered the 839-page affidavit to be expunged from the court records.

Earlier, the court struck out Mr Odinga’s application for a forensic audit of the IEBCInformation Technology (IT) system.

The Supreme Court ruled that Mr Odinga's application was time barred and could therefore not be allowed.

The judges also rejected a request by Katiba Institute to be enjoined in the suit as 'amicus curiae' (friend of the court).

The court ruled that the Institute had shown bias against the third and fourth respondents who are Uhuru Kenyatta and William Ruto.

- Daily Nation
 
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The Supreme Court judges have rejected the application of a forensic audit of the entire IEBC electronic system by the Cord coalition in the petition that seeks to have the announcement of Uhuru Kenyatta of the Jubilee alliance as the president-elect in the March 4 election overturned.

Cord through their lawyer Ochieng' Oduol had filed for the entire IEBC electronic system to be audited. Cord further wanted the mobile phones that were used in relaying the results from the respective polling stations to be availed to them.

Justice Mohamed Ibrahim who read the ruling stated that the application for the forensic audit by the Cord coalition was filed late after the petition challenging Uhuru's win was before the Supreme Court.

Along with the "hopelessly late" timing of the application, Mohamed further said that in the consideration of the court, the approval of the forensic audit would jeopardise the entire petition.

Additionally the application was thrown out on the basis of it being too wide and vague and that the modalities of the audit were undefined as well.

http://www.the-star.co.ke/news/article-114050/cord-forensic-audit-application-rejected


 
ODUOL-ORARO.jpg

Raila Odinga's lawyers George Oraro and Ochieng Oduol consult at the Supreme Court/ALI ALALE

​
NAIROBI, Kenya, – The Supreme Court judges on Tuesday afternoon rejected an application by Raila Odinga to carry out a forensic audit of the Independent Electoral and Boundaries Commission's (IEBC) Information Technology systems used during the elections.In a ruling read by Justice Mohammed Ibrahim, the court stated that the application argued by one of Odinga's lawyer Ochieng Oduol was time-barred.

"It becomes clear that the court cannot grant orders sought without seriously jeopardising the hearing of the petition. The application was filed four days after filing the petition," Ibrahim said.

The judges were of the view that the application would require the production of the entire of commission's IT system which could not be possible within the next 24 hours (that is before the start of the hearings scheduled for Wednesday).

"What the applicant seeks at this time of the day is what amounts to be the complete IT infrastructure of the IEBC. We are not persuaded such an order can be fully be complied with before the hearing of the petition."

The judges noted that if the applicant had made the application at the time of filing the petition, it would have been possible for the court to order IEBC to provide the forensic audit.

"The application was filed long after the petition on which the application is anchored. Coming at the pre-trial conference that is meant to prepare for the actual hearing of the petition, the application is hopelessly out of time and can only derail the fair and effective determination of the case," the judges said in reference to the arguments put forward by the respondents who opposed the application.

The application by Odinga's lawyer was also contested by other parties on the basis that it was directed to contractors of the IEBC who are not party to the petition before the Supreme Court.

"The latter are not parties to this petition and as such no order can be directed at them. The court should not issue orders whose reach affects persons who are not parties to this petition. The application is a mere fishing exercise in which the applicant is looking for evidence through the backdoor," the court said.

The judges agreed with arguments that the applicant did not explain who would carry out the forensic audit, how long it would take and the modalities that would be used to deliver the results from the requested audit.

Meanwhile, the judges also threw out an application by Katiba Institute and former CKRC Chairman Yash Pal Ghai to participate in the petition proceedings as a friend of the court.

Raila loses bid to audit IEBC technology | Capital News
 
Mbogela said:
Nadhani Timu ya Raila ilifanya kosa la msingi kutokufile kesi ya IT forensic inspection mapema, kwanini wlaichelewa namna hii?? Kila mtu alijua kuanzia pale tu matokeo yalipocheleweshwa kutolewa kuwa kuna mtu atakuwa amechezea System sasa imekuwaje wao hawakuweza kuona hilo?

Pia Je kwa ushahidi uliobaki sasa Timu ya Raila Odinga ina nafasi gani kwenye hii kesi?
Click to expand...


Mjaluo anachojaribu sasa ni kupiga mbizi kwenye kokoto...
 
[h=5][/h]


Lawyers had a field day trying to implore the Supreme Court to determine various preliminary issues before it.

As the case got underway, Prime Minister Raila Odinga'€™s defence team was accused of changing the nature of their petition along the way.

Lawyers representing President-elect Uhuru Kenyatta, his deputy designate William Ruto and Independent Electoral and Boundaries Commission (IEBC) chairman Isaack Hassan accused CORD of changing the case midstream and making new demands in a fresh application he filed on Saturday.

The lawyers in turn asked the Supreme Court to decide whether a 900-pageaffidavit filed by Raila on Saturday had been taken to court out of time and whether the issues he raised in it should be responded to.

They claimed that Raila'€™s team had served them with the document raising issues touching on 122 electoral areas. This was in addition to what he filed a week earlier touching on 33,000 polling stations.

Turn heat

'€œThis is a metamorphosis of the petitioner'€™s case. We responded comprehensively to his first allegations and new issues were raised,'€ said Uhuru'€™s lawyer Fred Ngatia. I will seek leave of court to apply for determination of whether the new issues can be raised for the court to determine,'€ he added.

'€œWe are now facing a different case from what we had at first,'€ said Hassan'€™s lawyer Ahmednassir Abdulahi.

The remarks were echoed by Ruto'€™s advocate Katwa Kigen, who said he would also ask for determination on whether Raila'€™s affidavit should be responded to. But Raila'€™s lawyer George Oraro turned the heat on the three respondents and the IEBC, accusing them of trying to avoid the issues in court.

He said their first case was about the tallying of votes. The IEBC filed a response explaining how they had conducted the elections efficiently. This prompted Raila to file the latest affidavit on issues arising from that response.

The respondents also raised issues with a draft of contested and uncontested issues prepared by the court. Lawyers Ngatia and Ahmednassir claimed some issues raised by their clients were not captured in the draft.

'€œWe must first polling areas. look at the issues that can be legitimately canvassed at the Supreme Court within the petition context,'€ he said, as he tried to guide the court on how to proceed.

The court directed all the lawyers to hold their conference on the sidelines of the proceedings to decide which issues were contested and which ones were not.

Earlier, another lawyer Kethi Kilonzo representing officials of a local NGO, demanded clarifications on register that was marked during the voting and one described by the IEBC as Special Register, which contained the names of those whose biometric details had not been captured.

IEBC lawyer Paul Nyamodi explained the register is in 700,000 parts and was still kept in the polling areas. He said the commission was willing to provide it but that would take some time.

The lawyers agreed that one of the petitions filed by three voters should be heard separately since it raised only one issue.

It'€™s seeking determination whether rejected votes should be used in tallying the votes cast.

- The Standard
 
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