Who between Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati and his deputy Juliana Cherera will blink first?
This is a question ringing in the minds of Kenyans as it now emerges that Chebukati and two commissioners, who are on his side, have appointed a set of lawyers who have filed court papers.
On the other hand, Cherera and the other three commissioners have also appointed a law firm that has also filed court papers and will also appear on behalf of the IEBC in the Supreme Court presidential election petition.
The commission's saga continues to deepen after new court filings revealed that the IEBC is being represented by two sets of lawyers.
Chebukati in his affidavit states that he is responding to the petition on behalf of the commission and himself. The law firm of Iseme Kamau and Maema advocates, according to the affidavit, represents the IEBC while G&A Advocates represents Chebukati. In the affidavit, Chebukati defends the commission, arguing that it followed the law to the letter and validly declared William Ruto as the winner.
However, Cherera has filed a separate affidavit on behalf of the same commission. Issa and Company Advocates have filed her papers.
According to her, Chebukati usurped IEBC's roles and it did not participate in the collation, verification and tallying of the election.
In the court papers, Cherera says that IEBC met on August 27, for its 280th plenary session. Those present, according to her, were Francis Wanderi, Irene Masit, and Justus Nyang'aya.
Chebukati, Abd Guyo and Boya Molu were absent.
At the same time, the IEBC vice chair states that Marjan Hussein Marjan, who is IEBC Chief Executive Officer was also absent but Ruth Kulundu, the deputy commission secretary in charge of operations was present.
The agenda of the meeting was prayers, a notice of the meeting, quorum and apologies, adoption of the agenda, declaration of conflict of interest, chairperson's welcoming remarks and the commission's position on legal representation at the presidential election petitions filed at the Supreme Court.
The meeting approved Issa and Co. Advocates led by Mr Issa Mansur to be the lead law firm to coordinate the commission's representation and responses.
On behalf of the commission, Cherera states that on the afternoon of August 12, the commission stopped displaying the verified and tallied results. She claims that Chebukati dismissed the concerns.
"The commission has to this day not been informed of the reason for the failure to project the election results so as to display the cumulative tally of the results for each of the four presidential candidates, despite this being a critical aspect that facilitates transparency in the electoral process," she claims.
The chairperson also adopts Nyang'aya's claim that the IEBC system was infiltrated and forms 34As were being pulled down and re-uploaded to the server.
Cherera states that although she does not impute any partisan move by Chebukati, the chairman allegedly conducted himself in a manner that was not consistent with the best interest of the commission and that of the Kenyan people.
She asserts that there is disunity in the commission, lack of consultation and unilateralism. Cherera also alleged that the Venezuelans were not the commission's invitees.
She alleges that their contact person Mr Mohamed Abdulahi Abdi is a former employee of the IEBC and allegedly works as an agent of the United Democratic Alliance (UDA) party.
"The 1st Respondent confirms that the said Mr Mohamed Abdulahi Abdi was apparently a former officer of the commission and has since left the commission and works as an agent of UDA. The first respondent further states that the said Abdi or the Venezuelans were not working for the commission in relation to the 2022 General Election. Their involvement is therefore questionable," Cherera claims.
On the other hand, Chebukati gives a different narrative.
He urges the court to find that there is no allegation against the commission and himself. He claimed the process of tallying and verifying the results was undertaken by the commission and therefore, complied with the law.
Chebukati alleges that he declared the results prepared by the commission.
The chair states that he had allocated everyone their duties but the final responsibility of declaring the winner was exclusively his. "I had allocated various commissioners and members of the commission's secretariat specific duties at the National Tallying Centre in writing. The verification and tallying was therefore undertaken by both the commissioners and the secretariat, but the responsibility to declare the result was reposed solely in my office," says Chebukati.
He says that the system deployed by the commission was foolproof adding that the forms were never manipulated.