Lawyers' humbling moments as durags, fedora hat light up court

Former Attorney General Githu Muigai arrives for the Supreme Court status conference. [David Gichuru, Standard] When former Attorney General Githu Muigai arrived for the Supreme Court status conference Tuesday, August 30, he was donning a white fedora hat. If it were not for the lawyerly briefcase on his hand, the company of fellow senior counsel Kamau Karori, and the setting - Milimani Law Courts - one would have been mistaken to think he was walking into a theatre. With one hand in his pocket, the other clutching the briefcase, he descended on the steps of the court exuding nothing but raw confidence. His hat, perhaps the first of its kind to grace the Supreme courtroom was joined in that feat by the silky and now notorious durag of presidential candidate George Wajackoya. But as soon as Prof Muigai put the fedora hat down, and the sessions began in earnest, everyone began to appreciate that it was no hearty affair. Yet CJ Martha Koome was in hearty, happy-clappy element, but was not letting anything slip under. From counsels who assumed they were too known, introducing others and somehow forgetting themselves, to those who got mathematical sums wrong, she was unrelenting. "Senior Counsel Fred Ngatia, you didn't say your name, we know you, but the system may not know you," she said of president-elect William Ruto's lead lawyer. A similar fate befell Senior Counsel Tom Ojienda, who wore a campaign lapel emblazoned with the letter "R" after the lead petitioner Raila Odinga. Senior Counsel Prof Tom Ojienda. [David Gichuru, Standard] "Oh sorry, Prof Tom Ojienda, Senior Counsel... (Senator) Kisumu County." He would later alert the court there were only two Senior Counsels who are also professors, in the room - himself and Prof Muigai. When Senior Counsel James Orengo brought to the court's attention that fellow counsels Paul Muite and Issa Mansur were locked outside the court, Koome took him head-on. Everybody was going to get things right. "Senior Counsel, they have not been disallowed, they have not been disallowed..." she countered him, with Orengo retreating bravely. Prof Muigai was not spared either. First, he was stood down two times, and when he succeeded and followed cue in introducing himself afresh for every petition, the Chief Justice seized upon him: "This is the third time you are telling us that Prof...." Much obliged, and guided, he beat a hasty retreat. As soon as Muite introduced himself, Muigai set out to prosecute a "rather irritating and irrelevant" motion as to whether Muite and Mansur were representing IEBC. Elephant in room He argued against them, but was stopped in his tracks by Koome, saying the session had not even gone way past introductions or what in court parlance is called appearances. The matter would later turn out to be the elephant in the room, with Muigai's side on the losing end. But Koome was not the only judge watching over the Counsels. When Ngatia tried a cheeky whispering act, he was cornered by Justice Smokin Wanjala. "Mr Ngatia, as a Senior Counsel you ought to know how to conduct yourself," he said, looking at him menacingly. Ngatia apologised profusely for the act. Senior Counsel Fred Ngatia. [David Gichuru, Standard] There were murmurs on time allotted to various sides. Some got their mathematics wrong, prompting corrections from, first Koome in respect of Ngatia, and later Orengo in respect of a disbelieving plenary. "Its six hours... you do a little bit of mathematics you will notice its six hours. I did a little bit of it," he said. Counsel Eric Gumbo complained the petitions had been mutating in form and character, with every new affidavit. Later when the lawyers got bogged down in endless argument and counter argument on late filing of affidavits, Koome cut them short, arguing the time available to the court was not elastic. Not even Orengo could pull her back to a fresh issue as to whether the amici curiae represented by Charles Kanjama was overstretching their mandate: "Senior Counsel, we will deal with that, we have the capacity to deal with it. With your kind permission, we will adjourn and reconvene at 4pm," she said. In the afternoon session, lawyer Amondi Kenneth holding brief for Prof Wajackoyah attempted to address the court. He was not lucky: "Counsel can you please take your seat. Prof Wajackoya is not a petitioner, he is not a party. Please take your seat," Justice Koome ordered. Later, Wajackoyah himself made another attempt, this time by himself. Prof George Wajackoyah attempted to address the court. He was not lucky. [David Gichuru, Standard] He had barely introduced himself as a presidential candidate before Justice Isaac Lenaola cut him short: "Prof. Wajackoya, please, we have some issues on the floor. Can you wait we address them and then we can come back to you, please?" He obliged. The thorny issue of opening up the servers came back. Lawyer Gumbo sought clarification as to whether it was a read-only-access, the court clarified that it was "a supervised access" different from the read-only-access of the 2017 decision. Wajackoya wound it up, in his durag. It was his first time to appear before the Supreme Court, asking for discretion to speak to the petition. Justice Wanjala was swinging in his seat as he watched the man try his luck.

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