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Lawyers Fred Ngatia and Melissa Ng’ania ask Supreme Court to expunge six volumes of documents

By Kamau Muthoni and Paul Ogemba | Published Wed, November 15th 2017 at 00:00, Updated November 14th 2017 at 23:50 GMT +3
Solicitor General Njee Muturi with Jubilee lawyers Ahmednasir Abdullahi and Fred Ngatia consult during presidential election petition 2017 at the Supreme Court on Tuesday 14/11/17. [Boniface Okendo,Standard]

There was a heated argument between lawyers representing Uhuru Kenyatta, the electoral body and two petitioners over some documents which had allegedly been filed out time.

The lawyers were engaged in heated arguments on Tuesday over documents filed by petitioners Khelef Khalifa and Njonjo Mue out of the seven days which were set by the Supreme Court.

President-elect Uhuru Kenyatta through lawyers Fred Ngatia and Melissa Ng’ania asked the highest court in the land to expunge six volumes of documents which were filed a day after the deadline.

The two also asked the court to strike out several Independent Electoral and Boundaries Commission (IEBC) internal memos on account that they were acquired illegally.

 The court also heard that there was an affidavit which has never been served to date.

“The basis of this request is that the memos were unlawfully and illegally acquired by the petitioners,” lawyer Ng’ania submitted.

“In the memos we see that they are internal documents and there is no evidence that the petitioners requested the secretary of the second respondent to avail them.”

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Lawyer Ngatia submitted that the two petitioners never filed an affidavit to explain why the contested volumes were never filed in time.

“The Constitution allows complete sets of petitions to be filed. Numerically they ought to be eight. Two is way below and very poor.

Asked what should be done to two complete ones. He replied that what his client was served with had a constitutional infraction.

On the internal memos, the senior lawyer argued that allowing them to be a part of the court record would amount to opening the flood gates for petitioners to obtain documents illegally.

Lawyer Ngatia argued: “There is a legal way of obtaining documents. There is no market for obtaining evidence. It will be a license for litigants to obtain documents illegally and placing them in court. We cannot assume that they are authentic as IEBC has not said they emanated from it.”

Khelef and Mue’ s lawyer Julie Soweto in opposition of the applications told the Court that they filed some of their documents out of time as the time to verify them at the registry had ran out.

She was hard-pressed to explain as to whether all the documents were at the registry as the last minute and she said no.

Chief Justice David Maraga asked: “Be candid. The information we have is that the volumes were not brought together with the others. Did you have all the documents on the midnight of the deadline?”

Lawyer Soweto responded that although they were at the registry at 9.00pm on Sunday, the registry received their first documents at 11.45pm. She explained that the registry clerks at some point got tired and asked them to file the remainder of the documents the following morning.

Lawyer Harun Ndubi rose and told the court that he was on his way with the contested but was informed that the registry had decided to push the filing on the following day.

He claimed that the Deputy Registrar of the Supreme Court David Ole Keiwua was absent during the filing of the petition.

The CJ who was sitting alongside his deputy Philomena Mwilu, Justices Njoki Ndung’u, Jackton Ojwang’, Smokin Wanjala and Isaac Lenaola asked the DR who was also inside the court whether it was true.

Mr Keiwua rose and told the judges it was not true.

“There were only two documents which were complete. We were not tired, they left at their own choice,” Mr. Keiwua responded.

Lawyer Soweto told the court that the application filed by President-elect Uhuru only meant to cripple the case out of a technicality.

On the memos, Ms. Soweto argued that the leaked memos were in public domain and that IEBC did not deny that they did emanate from its commissioners.

“We have not obtained the evidence illegally. They are documents that have been in public domain. Public interest outweighs the third respondent.

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