Why Ruto's Lawyers Want Supreme Court To Uphold Election Win [HIGHLIGHTS]

Lawyers representing president-elect, William Ruto, made their submissions at the Supreme Court on Thursday, September 1, seeking to have his win in the 2022 general elections upheld by the seven judges.

The team was led by outgoing Tharaka Nithi Senator Professor Kithure Kindiki, Katwa Kigen and Muthomi Thiankolu as well as Kiragu Kimani, Kioko Kilumi and Lead Senior Counsel Fred Ngatia.

Also in the team is Melissa Ngania, who notably appeared in President Uhuru Kenyatta's legal team during the 2017 presidential petition. At the time, she was  admitted to the bar in 2011 and currently worked with Wairegi Gatetua & Associates having formerly worked with Havi & Company Advocates under her former mentor, lawyer Nelson Havi.

The team dropped a number of bombshells in seeking to have Ruto's win validated at the expense of Azimio la Umoja leader, Raila Odinga, who filed a petition at the apex court seeking to overturn his victory.

The Supreme Court judges hearing the presidential petition on September 1, 2022. /COURTESY

Katwa Kigen

Kigen revealed that there was nothing to show that Ruto did something that could have amounted to collusion with the Independent Electoral and Boundaries Commission (IEBC).

"Mr Ruto’s team and what IEBC did was pick the forms presented by Raila and asked their agents and presiding officers to give what they obtained and attached them in the replies.

"The election was largely manual. The only part that was electronic was voter registration, voter identification and transmission,” said the seasoned Counsel.

Kigen revisited the affidavits by former journalist John Githongo, noting that the evidence he provided is hearsay and based on the information given by a third party but how is not disclosed.

Githongo had noted that they looked at the logs and relates to the dates of elections in 2017 but upon scrutiny by the team, they realised that substantial parts of those logs were posted by Makau Mutua in 2017.

"They were logs used for petitions in 2017. When it was pointed to him, he (Githongo) retracted his statement, saying it was meant for a demo. Those are the only logs that have been presented for purposes of challenging this election. With the withdrawal, the element of the petition should have been withdrawn," he added.

Kigen prayed for the apex court to maintain the consciousness that the elections were not electronic, they were manual as the elections were declared based on hard copies from constituencies and that the IEBC portal was meant for transparency and comfort.

"The process of verification of Form 34As took 6 days. It is our submission that Raila through his agents was happy with the process up to the last minute when the tallies were done and it reflected a win for a party other than the one they wished," he went on.

Kioko Kilukumi

Kilukumi had likened Ruto's presidential election victory to the baby who was being claimed by two mothers before King Solomon in the Bible.

"I wish to ask the court to reflect on the ruling of King Solomon; you have two gentlemen here, each one claiming baby victory…Raila is saying baby victory is mine and goes on to say if you cannot give me baby victory cut him into two," he said.

He further noted that it was a coincidence that TV screens across the country were split into two; the four breakaway IEBC commissioners and Raila both spoke strikingly similar words during their media addresses on Tuesday, August 16.

He added that according to Ruto, in the last 5 years, the National Security Advisory Council (NSAC) has not sat and discussed anything to do with elections.

"The visit by NSAC at the tallying centre was designed to intimidate Chebukati and influence the outcome of the election," he said.

Kiragu Kimani

Kimani hinted to the court that the petitioners should bear all costs of the presidential petitions as opposed to all parties bearing their own. He further argued that a lack of consequences will mean an increase of presidential petitions to 200 in five years.

"It is not enough to demonstrate that there were irregularities or show that there was a breach of the law. It has to go beyond that to show that it affected the outcome," he said.

Muthomi Thiankolu

Thiankolu took fault with Raila's claim that Ruto was able to intercept 11,000 forms in eight minutes and alter them, classifying it in the realm of fiction. He added that he was struggling to understand how the fraudster with a laptop intercepted results in the full glare of cameras and agents

"Even if you were to be as benevolent as Father Christmas, the verdict you would return is that this case is a story full of sound and fury but signifies nothing. Let the works of fiction be left to John Grisham and James Bond," he said.

He claimed that the petition is the work of fiction and specifically a story full of sound and fury which signified nothing, one that is categorised under the genre called tragicomedy which is a combination of comedy and tragedy.

"Are you going to believe the man whose name combines the names of 2 saints names, John & Mark, and the 3rd name Githongo or Arnold Ochieng who produced documents disowned by all the presiding officers?" he posed.

Melissa Ngania

Ngania argued that no agent has demonstrated any problem with the voting at the polling station, and that if they are not present to certify their role, they should then not blame any person.

"We have been told a lot of stories in the 8 petitions...in my concluding remark I will seek refuge in the holy book, Proverbs 10:19 says when words are many sin is not absent, but he who holds his tongue is wise," she said.

Kithure Kindiki

Kindiki revealed that on Monday, August 15, the day the presidential results were declared, a mob of people invaded the dias at the national tallying centre. He argued that to date the heinous and frontal attack on the country's democracy remains unresolved and the perpetrators are marauding around the country and some of them are in the courtroom.

"The chaos at Bomas constitutes nothing but an attempt to establish govt unconstitutionally; the events of that day are an attempted but failed coup d'etat," he said.

He pleaded the court to invoke by way of analogy three doctrines of law; doctrines of frustration, the doctrine of necessity and the doctrine of supervening impossibility.

"It is not humanly possible for the 7 commissioners to tally results emanating from 46,229 polling stations across the country. The right to franchise can not be subjected to the will and ego of 7 men and women," he added.

Kindiki added that the burden of proof in election petitions lies on the person seeking judicial invalidation of the election, not on the respondents.

Lawyers at the Supreme Court on September 1, 2022. /ZAKHEEM RAJAN