Petition lawyers caught off-guard over confidential documents

 

Supreme Court Chief Justice David Maraga during the hearing of Presidential Election petition 2017 at the Supreme Court [Photo By Boniface Okendo,Standard]

Petitions challenging the repeat presidential election were doomed after internal memos obtained from the electoral commission were rejected by the Supreme Court.

And failure by petitioners to ask that a report arising from the scrutiny of poll results forms be filed in court also substantially weakened their case.

Activists Khelef Khalifa and Njonjo Mue had attached memos leaked to the public revealing internal wars within the poll agency in a bid to strengthen their case that the October 26 election was a sham.

The memos, which exposed divisions among electoral officials, were central to proving the Independent Electoral and Boundaries Commission (IEBC) was dysfunctional and therefore not capable of overseeing credible elections.

However, the lawyers for the two petitioners were thrown off-track after the court’s order that the confidential documents would not be allowed in the case. 

Lawyers Fred Ngatia and Melissa Ng’ania for President Uhuru Kenyatta applied to the court that all the six documents obtained from IEBC be struck out.

The two lawyers explained that the memos were obtained illegally and thus could not be used as evidence.

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

Ngatia argued allowing them to be a part of the court record would amount to opening the floodgates for petitioners to acquire papers unlawfully.

“There is a legal way of obtaining documents. There is no market for obtaining evidence,” he argued.

“It will be a license for litigants to obtain documents illegally and place them in court. We cannot assume that they are authentic as IEBC has not said they emanated from it.”

Lawyer Julie Soweto for Khalifa and Mue told the court the application filed by President Uhuru only meant to cripple the case out of a technicality.

Ms Soweto argued the leaked memos were in the public domain and IEBC did not deny 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’s (President Uhuru) application.”

The activists’ legal team also had a challenge on how it drafted its prayers.

The two had asked the court to allow them access to forms 34A and 34B in order to identify irregularities and illegalities committed by the commission.

However, they forgot to include a prayer that they should be allowed to file a report in court on what they found.

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