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Published by: Justin Luu on Mar 27, 2013
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No. 29292
KSh 50/00 TSh1000/00 USh1500/00
Kenya’s Bold Newspaper
Wednesday, March 27, 2013
Fresh tallying at KICC asCORD affidavits rejected
Abdikadir quitsrace for HouseSpeaker,
Cabinet:Nyong’osues Kibaki overorder to resign,
CORD’s call for forensic audit of IEBC’sIT technology rejected Judicial clerks conduct recount of results for 22 polling stations at KICCThey also scrutinise Forms 34 and 36from all constituencies and the DiasporaHearing begins today, ends tomorrow,and ruling expected by Saturday
Judicial and other officers go through the motions of tallying afresh results of the March 4 General Election at the Kenyatta International Conference Centre, Nairobi, yesterday.
Sprm Cort Js inspct t rtllyin of vots t KICC, ystry.
Lawyers disagree on core issues
Even as the Supreme Court con-cluded the house keeping agenda,lawyers were yet to agree on whatissues the judges should decide on,last evening.The more than ten active lawyersin the three election petitions couldnot agree on which issues were con-tested, and which ones were uncon-tested. They also could not agree with the list prepared by the courtcontaining 12 o what the judge’sthought were the key issues.The lawyers were required to in-dicate against each o the items whether they considered it contest-ed. One outstanding issue is whetherthe rejected votes should be used intallying o votes cast.The other was whether the presi-dential votes had been properly tal-lied leading to the declaration o Uhuru Kenyatta as president-elect. Another issue was whether the elec-tion was ree and air, credible, ac-countable and transparent.On Monday, the lawyers weregiven a three-hour break to discussand agree on the issues they thought were contested and those that werenot. Later in the day, they inormedthe court they had drated six issues,but had not agreed on them.The court allowed them moretime, but by yesterday aternoon,they still had not agreed. LawyerFred Ngatia said some parties hadfled their own lists o what they con-sidered contested and uncontestedissues and asked or time to allow allthe parties to fle their drats.The court will address the materas the frst item this morning beoreembarking on hearing the merits anddemerits o the petitions. Once theparties have submitted their drats o issues, the court would only enter-tain submissions on what is con-tested.
Wednesday, March 27, 2013 / The Standard
B Ally JAmAha WAhome Thuku
Judicial sta kicked o rigorousscrutiny o crucial orms submitted by electoral ofcials countrywide at theKenyatta International ConerenceCentre as Prime Minister Raila Odingalost key applications at SupremeCourt.Raila and his Coalition or Reormsand Democracy ailed to clinch thecourt’s orders or orensic audit o Independent Electoral and Boundar-ies Commission (IEBC) IT system in abid to unearth i there were electronicmanipulation o the March 4 electionresults.The PM also suered another set-back when the court rejected an 839-page afdavit fled in his petition,raising new allegations o electoralirregularities. The court ruled that theafdavit had irregularly been fled without permission o the court andcontrary to the rules o engagement.Supreme Court Judge JusticePhilip Tunoi, who read the ruling onthe afdavits on behal o his col-leagues, dismissed the ‘late’ afdavits with costs during the pre-trial coner-ence. In total the court rejected seveno Raila’s afdavits over technicalitiesrelated to the time o fling and how they were fled.Tunoi said parties have a duty toensure they comply with respectivetimelines and not waste time or thecourt and other parties to the peti-tions. Also beore the same court a bidby a civil society group Katiba Watchled by Pro Yash pal Ghai had its ap-plication seeking to be enjoined in thecase thrown out.But even as the Supreme Court was ruling on the applications by thePM, judicial clerks were still re-tallying votes rom 22 polling stations. Also at the same venue other judi-cial sta were engaged in scrutinising Forms 34 and 36 rom all the 290 con-stituencies as well as rom the Diaspo-ra as ordered by the court. Form 34bears the results rom polling stations while Form 36 is an aggregate o Form34s at the constituency level.The painstaking eort aims atveriying i there were any inconsis-tencies between the number o regis-tered voters per polling area and thetallies signed and orwarded to theNational Tallying Centre by respectiveReturning Ofcers countrywide.
regisTered voTers
The scrutiny involving records re-turned by the presiding ofcers in allthe 33,400 polling stations went onsimultaneously with that o resh tal-lying o votes in the 22 constituenciesCORD suspects the number o peopleIEBC reported to have voted may haveexceeded the registered voters in thatparticular station.Last evening, the President o theSupreme Court, Justice Willy Mutun-ga, who is leading the six-judge-bench, toured KICC to assess the reshverifcation process the judges or-dered on Monday.The judges, who have been engag-ing lawyers on preliminary arguments, will begin the serious business o ad- judicating the issues touching on thepresidential elections this morning.They will hear the main petitionfled by Raila challenging the IEBC’sdeclaration o Mr Uhuru Kenyatta asPresident-elect on March 9, or thenext two days ater which they areexpected to deliver their historic rul-ing latest Saturday.The PM had applied to have a o-rensic audit o all the InormationTechnology (IT) equipment and elec-tronic acilities used by the commis-sion. He had applied or an order tohave IEBC compelled to produce allthe equipment and inormation on itsequipment, including computer serv-ers, to have the court conduct theaudit.But in a ruling read out by JusticeIbrahim Mohammed, the bench saidthat owing to the strict time limits thecourt has to hear and dispose o thecase, it would not be possible to havea thorough audit o the IT system. Theapplication was fled on March 19,our days ater the fling o the peti-tion.“What the applicant seeks at thistime in the day is the production o  what amounts to the complete IT in-rastructure o IEBC. We are not per-suaded that such an order as is soughtby the applicant can be ully complied with beore the hearing o petition setto commence on 27th o March,” hesaidHe added: “Indeed, i the peti-tioner had fled the application at thetime o fling the petition and pro-ceeded to serve the same upon thesame respondents, it would have beenpossible or the court to issue appro-priate orders during the frst mentiono the petitions. The time or service,fling, hearing and determination o the petition is indeed limited.”
presidenTiAl peTiTion
Justice Ibrahim indicated that thecourt could not grant the orderssought without seriously jeopardising the hearing o the main petition.He reminded the legal teams thatall the petitions were to be heard andconcluded within a strict and rigidtime rame decreed by the Constitu-tion, saying the timelines were consti-tutional and not negotiable. Although the applicant said that what was sought would be producedin a very short time, the body o thepetition indicates a dierent thing.“The intention o the ramers o theConstitution must have been to has-ten the determination o the presi-dential petition given the high stakesinvolved and the great public interestthat would ensure rom such peti-tion,’’ the judge went on.“The law obliges the court o law to administer justice without undueregard to procedural technicalities atthe expense o substantive justice. Butin this matter, our insistence on theconstitutionally-decreed timelines donot amount to undue regard to proce-dural technicalities,” he added.Justice Ibrahim urther went on:“Ideally, an intending petitioner mustutilise the seven-day window aordedby the Constitution ollowing the dec-laration o results to ully prepare hisor her pleadings. Likewise, the re-spondent must utilise the three daysaorded by the rules to mount a com-prehensive response to all the allega-tions made in the petition,”But other lawyers who opposedRaila’s application argued the ordersought would require the productiono the entire IT inrastructure o IEBC, which they termed a “monumentalundertaking impossible to eected within 24 hours” and that it was just afshing exercise or inormationthrough the backdoor.They also argued that it had cometoo late during the Pre-trial coner-ence, which is essentially meant toprepare or the actual hearing o thepetition. They added that i the order were granted, it would derail the airhearing o the trial.
provide proof
But the PM’s lawyers led by GeorgeOraro insisted the application was anintegral part o the petition since itsought inormation that was criticalto the case since it would providecritical answers as to why the IT sys-tem ailed on election day. They alsoargued that the inormation wouldhave provided proo that the system was “designed to ail rom the start”They added that the inormationrequested was not as monumental asimplied by the opponents. They ar-gued that the inormation was easily available rom the central servers.
AUdiT rEpOrT OnTAllying rEAdy
• The results of scrutiny and re-tallying of votes ordered by Su-preme Court on Monday will bepresented to the court today• The judges will receive the re-port of the re-tallying of votesfrom 22 polling stations• The report will also give detailson audit of Forms 36 used byIEBC in aggregating tallies fromForms 34• The court ordered the scrutinyof Forms 34 from all the 33,400polling stations and all Forms 36used in the tallying of presiden-tial votes• The Registrar of the SupremeCourt, Ms Esther Onchana willgive the court the report
Jstic NjokiNn’Jstic SmokinWnjlCif JsticWilly MtnJstic PillipTnoiJstic JcktonOjwnJstic MomIbrim
Poll books and BVRsystems and theelectronic resultstransmission systemsadopted by IEBC wereso poorly selected,designed andimplemented thatthey were destined toail rom inception,with the knowledge oIssack Hassan and thecommission.
Collps of tqipmntfnmntllycn t systmof pollin n tnmbr of vots csts t iscritmnl systm sttnnt risks nprsnts opportni-tis for bs nmnipltion, wicin fct took plc.
Ofcial list oregistered votersinexplicably andmysteriously grewovernight by a largeproportion on theeve o the election,notwithstanding thatregistration hadclosed some 30 daysand was by law notpermitted to beopened or changed.
Rsltscontin wispr instncs ofmnipltion of trtrns troltrtion of Form36 n in sominstncs t votscst xcin tnmbrs ofristr votrs.
Total number ovotes orPresidentialcandidates in someinstances exceededthose cast or thegubernatorial andparliamentaryelections atertaking due accounto any spoilt orrejected or disputedvotes.
The law obliges thecourt of law to administerjustice without undueregard to proceduraltechnicalities at the expenseof substantive justice
Court rejectskey applicationsfrom Raila team
 Judges dismiss the‘late’ afdavits fromPrime Minister’slawyers with costs
TOP: Ms Kethi Kilonzo (standing)during proceedings for the presiden-tial election petition in the SupremeCourt, Nairobi, yesterday. INSET:Kethi outside the court.
Wednesday, March 27, 2013 / The Standard
The heavyweights in the SupremeCourt room, some the age of her fa-ther and others her former lecturers,do not seem to deter her resolve torepresent her client in the historiccase.Ms Kethi Kilonzo won the hearts of Kenyans on social media and is now the talk of town even before thepresidential election petition getsunder way this morning, owing to hermanner of prosecuting Africog’s case.Kethi, the daughter of MakueniSenator-elect and Education MinisterMutula Kilonzo — who is also a SeniorCounsel — is a typical case of like fa-ther like daughter.Kethi has not only shone the fam-ily torch brightly but has also shownthat the best legal minds can be foundamongst young people.Unlike some of her seniors whohave exhibited emotion, Kethi hasbeen able to prosecute her case in afirm but composed manner, hammer-ing the point home to the delight of many. Kethi’s determination has gonea long way in helping demystify thebelief that only seniors can handlemajor cases before the Court of Ap-peal and the Supreme Court.In the presidential petition casebefore the Supreme Court, Kethi is the youngest counsel.The 2001 University of Nairobi law graduate has handled major casesdirectly and indirectly as she buildsher career among ‘learned friends’.Kethi has acted for former Presi-dent Moi in a number of cases, in-cluding one in which former MPMak’Onyango claimed he was unlaw-fully detained during the 1982 at-tempted coup.Based on her submission to the
Mutula’s daughterfollows in the familytradition and shows off her prowess at historicpresidential petitionappearing for Africog
court, the then High Court judge Kal-pana Rawal absolved the former Headof State from any liability on groundsthat there was no evidence of per-sonal misconduct in the detention of the petitioner.
The Attorney General was orderedto carry the burden of illegal acts per-petrated by the Government andRawal awarded the petitioner Sh20million compensation.In another case that touched onthe issue of dual citizenship, Kethirepresented former Wajir South MPMohammed Sirat in a matter that he was required to take plea as an Aus-tralian citizen before the Chief Magis-trate’s Court.Last year, the young lawyer whohas been running Mutula’s law firm with her brother, Mutula Kilonzo Jnr,after their father resigned in 2008 onbeing appointed to the Cabinet, took the Kenya Revenue Authority (KRA) totask when it seized Sh10 million fromthe company’s clients’ account tosettle more than Sh300 million tax al-legedly owed by their father.The High Court issued an order inthe two siblings’ favour, compelling 
Kethi Kilonzo: Like father, like daughter
In the human rights front, Kethihas filed several cases for clients whose rights have allegedly been vio-lated, including the IndependentMedico Legal Unit (IMLU).She moved to the EACJ where shefiled a case against the State for failing to take action on security officers whocommitted offences in Mt Elgon be-tween 2006 and 2008.Kethi was also one of the lawyersin a case filed by Kanu against thethen Narc Government on the Ke-nyatta International Conference Cen-tre ownership dispute.She joined the University of Nai-robi in 1997 for her Bachelors in Law degree and the Kenya School of Law for her diploma before being admit-ted to the Bar. She returned to theUoN where she did her Masters inLaw specialising in Public Finance.Kethi was the top student in Kenyain 2006 audit examination conductedby the Association of Certified Ac-countants.She is a member of Chartered In-stitute of Arbitrators (Kenya Branch), Association of Certified Chartered Ac-countants (United Kingdom), andCommissioner for Oaths.KRA to return the money.In the case in which a group of politicians challenged nominations of Kenyan representatives to the East African Legislative Assembly, Kethi was in the team of lawyers that wonthe case that saw the East AfricanCourt of Justice (EACJ) order the Gov-ernment to pay the politicians Sh160million.
@UrbaneKenyan: Fightingwith Kethi Kilonzo would be anightmare on a domestic lev-el. Her argument and presen-tation stings@coldtusker: I betcha KethiKilonzo will have many amicusrequests today... Starting withone @IanECox@YvonneOkwara: Kethi Kilon-zo. Eloquent and firm. Knowsher stuff!@Ngithongo: Fascinating towatch legal minds at work inthe Supreme Court. Much re-spect to Kethi Kilonzo@kushsally : #Kethi Kilonzo-We need more women like her.She is doing what she knowsbest.Sio mambo na kulialiatupewe chance but showingwhat you got

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