Supreme Court judges were on Monday, October 9, got into a heated argument with the Independent Electoral and Boundaries Commission lawyers as the former sought to understand what commission chair Wafula Chebukati wants clarified.
Chebukati who was the second responded in the August presidential petition, wants the court to clarify if he has powers to correct errors and amend Forms 34A and B.
All eyes are on the court which is expected to rule tomorrow if it has jurisdiction to hear the case.
Lawyer Paul Muite who represents the electoral agency, told the judges, “Your judgement has caused confusion” which rubbed the judges the wrong way.
“This is not an appeal of Maina Kiai’s case. Where is the problem between the Maina Kiai case and what we said? Can you put it in a language that we can understand? Because until now, I honestly do not know where the problem is,” Deputy Chief Justice Philemona Mwilu said.
“We want clarity in your judgment. Which forms should Wafula Chebukati rely on? Is it Forms 34A or 34B.” Muite answered calmly.
The lawyer tried to explain, albeit in vain, that the Court of Appeal was clear that results announced at the polling stations are final and cannot be altered or changed but the judges who rendered a majority decision which annulled the August 8 poll, faulted Chebukati for announcing figures without first verifying them.
But Mwilu, in a quick rejoinder, said she cannot recall, where the majority said the commission should verify the results at the national tallying centre.
“Did we say, touch or move a coma, change figures? Did we say that in our judgment? Where? I don’t remember saying that and I know I participated in that judgment,” she said.
Adding: “Where the problem is is what is it that we are required to clarify?”
Muite said, “We are seeking a clarification on how the presidential returning officer should go about the function of verifying the results before announcing the winner.”
Chief Justice David Maraga interjected and asked Muite to read Section 39( 1 ) (c) of the Elections Act which states, “For purposes of a presidential election the Commission shall electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre”.
“Perhaps Chief Justice should explain what you mean by simple,” Muite responded after Maraga told him, it was that simple.
Kamau Karori, also a lawyer for the IEBC, asked the judges to explain what the Chairman should do after verification. President Uhuru Kenyatta’s lawyer, Kiragu Kimani, on the other hand, said the issue was grave and the court should come out clear to avoid problems in future.
Prof Ben Sihanya who was holding brief for NASA, however, faulted the commission saying it was trying to appeal against the Maina Kiai case through the backdoor. The case was adversely mentioned during the petition but CJ Maraga and the three other judges seemed to contradict it in their judgement.