Supreme Court Key Highlights As Raila's Lawyers Hunt Down Chebukati
Raila's petition was given priority status and the team of five lawyers was required to make their submissions at a time limit of three hours.
Marvin Chege 
The legal team representing Azimio la Umoja-One Kenya presidential candidate, Raila Odinga, took to the Supreme Court floor on Wednesday, August 31 to present their submissions on day one of the hearing of the presidential election petitions.
Raila's petition was given priority status and the team of five lawyers was required to make their submissions at a time limit of three hours.
James Orengo
Senior Counsel James Orengo was the first to make his submissions and he took fault with the results announced by the Independent Electoral and Boundaries Commission (IEBC) in comparison to the Form 34C document used to declare the presidential results.
“If you look at the results as announced by IEBC and compare them with what is stated in Form 34C, and if you compute the number of votes cast for each of the four candidates, they do not add up completely,” he said.
Chief Justice Martha Koome and her deputy, Philomena Mwilu, at the Supreme Court of Kenya on August 31, 2022. /ZAKHEEM RAJAN
“Our grievances is not a conspiracy theory or any ordinary event, if you look at the evidence in totality, We invite your lordships to come to the conclusion that what happened on August 9 marks a pattern of violations against the constitution in order to undermine the sovereign will of the people."
Orengo also argued that the commission was unable to deal with a systematic deduction of votes cast for Raila in some constituencies in favour of President-elect, William Ruto.
“The way the commission was able to deal with the forms in uploading, transmission, and others deleted from the system clearly showed that this election was rigged in favour of Ruto and we urge that you nullify the election because Ruto did not attain the 50 per cent plus one vote threshold," he said.
He also revealed that the division within the IEBC was one that speaks to a dysfunctional constitutional body that is not capable of presiding over an election.
Orengo also focused on the differences between the voter turnout announced by IEBC Chair Wafula Chebukati immediately after the elections and the number recorded in the final results.
Julie Soweto
Soweto was making her second appearance in a presidential petition following the 2017 events that saw the results annulled. She is working alongside Orengo and his law firm, JAB Orengo Advocates, which helped propel her into the legal limelight in Nairobi.
Soweto agreed with Orengo, noting that there were discrepancies in terms of the votes cast in the President, Governor, Senator Woman Rep, MP and MCA categories across various polling stations. She cited Kirinyaga County where votes cast for Governor and President had a difference of 23,550 votes in favour of the latter.
"In 41 forms from the polling stations; Forms 34A received by petitioners' agents versus the Forms 34A uploaded in the IEBC portal and those brought to the tallying centre are different. Sampled forms were from Bomet, Kiambu and Kakamega counties," she noted.
She added that copies of 41 Forms 34A from Bomet, Kiambu and Kakamega that were given to agents differ from what is in the IEBC portal and those submitted at the National Tallying Centre at Bomas of Kenya.
“Irene Massit in her affidavit says the IEBC CEO and chairman failed to ensure that due diligence was done on the procurement, proofreading and printing of ballot papers,” she added.
Soweto also revealed that a rough calculation of what is given as stray ballots for Kirinyaga county alone yields 33,000 stray ballots per polling station, which was submitted, was not possible.
Paul Mwangi
Lawyer Paul Mwangi accused chairperson Wafula Chebukati of disrespecting the constitution and that he has been unable to deliver a free and verifiable election. He added that the chair attempted to install himself as a new-age supervisor of election and emasculated the role of other commissioners
"There is no way the chairman of a commission can treat other members of the commission as subordinates because they have almost the same qualifications and enjoy the same security of tenure," Mwangi said.
Mwang also noted that Chebukati has never made complaints against the four IEBC commissioners since they joined in September 2021, but there are complaints by other commissioners against him dating back to 2017.
Philip Murgor
Senior Counsel Philip Murgor told the court that the technology deployed by IEBC in the 2022 general election completely failed the standards of a secure, transparent electronic voting system, that it was corrupted, manipulated and tainted.
He also noted that there were several generations of Form 34C yet it was only supposed to be generated once toward the end of the tallying. Murgor added that there was also evidence of backward tallying.
"A result for Ruto was being arrived at before the tally was in and each time work was being done to fit 34A and 34B in that result. Through confusion and error, the result was forced on Kenyans through a defective 34C where the commissioners failed to agree," he said.
Counsel representing different parties share a light moment at the Supreme Court of Kenya on August 31, 2022. /ZAKHEEM RAJAN
Pheroze Nowrojee
Senior Counsel Pheroze Nowrojee had asked the court to direct the person with the most votes to be declared President-elect and dismiss Chebukati as IEBC chair.
He also asked the court to declare the gazette notice announcing William Ruto as President-elect null and void.
"This is why there are people going to people's houses at 3:00 am and 4:00 am," he argues.
Nowrojee questioned how every 5 years there is a crisis under Chebukati, challenging the decision to postpone the Kakamega and Mombasa by-elections which took place on Monday, August 29.
He added that Form 34C is so key that it needs a second check by all the IEBC commissioners who represent the people of Kenya.
Zehrabanu Janmohamed
Janmohamed, who is the counsel for petitioner John Njoroge, revealed that the framers of the constitution knew exactly what they were doing, that the declaration was to be done by the chairperson but if they wanted him to do the verification and tallying, they would have said it.
She backed Nowrojee's prayer to have the apex court nullify the presidential election and bar Chebukati from conducting any other election or holding any public office.
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