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Monday, 25 March 2013

Kenyan's Attorney Request As A friend Of The Court Faces Challenge

 
 Lawyer Kethi Kilonzo for AFRICOG objects to AG application citing the nature of the application, it's an election petition not Constitutional interpretation. Lawyers Katwa Kigen and Fred Ngatia have no objection to AG being enjoined in the Case.
Lawyer Oraro says an election petition cannot be termed as a civil litigation, to warrant the AG’s inclusion. However, according to ICJ, Amicus must not be a friend of the parties, only the Court. And leave (permission) or invitation of the Court must be obtained beforehand

Tuesday, 19 March 2013

All Ministers Elected to Various Positions in The March 4 General Election Ordered To relinguish their Cabinet Posts Immediately

President Kibaki has directed all ministers elected to various positions in the March 4 General Election to relinquish their Cabinet posts immediately. Below is a copy of the letter:
Pursuant to Article 126 of the Constitution of Kenya 2010, His Excellency the President shall appoint a place and date for the 1st sitting of the new House which shall not be more than 30 days after the General Elections held on 4th March, 2013. On the first day of the sitting, the first Order of Business will be Swearing-in of members and election of the Speaker of the National Assembly and the Speaker of the Senate. The date of 1st sitting of Parliament is tentatively scheduled for Thursday, 28th March, 2013.

Under the new constitutional dispensation, one person cannot hold two State Offices. Indeed, all elected persons were contained in a Special Gazette Notice dated 12th March, 2013. In essence, this formalizes the appointment into the elective offices save for the swearing-in.

At the advice of the Hon. Speaker and the Attorney General, His Excellency the President has, therefore, directed that all Ministers and Assistant Ministers who were elected during the recent General Election to the positions of Senators, Governors, Members of the National Assembly or Women Representatives should resign, with immediate effect, so as to qualify to be sworn in by the Clerk of the National Assembly.

In this regard, Ministers/Assistant Ministers who did not compete or qualify for the said elective posts will remain in Government, until the swearing-in of the President and appointment of the new Cabinet Secretaries.

Secondly, your attention is drawn to the provisions of Article 134(2) of the Constitution forbidding the nomination, appointment or dismissal of State or Public Officers during the transition period referred to by the Constitution as the‘period of temporary incumbency’. Consequently, all appointments effected after the 4th March, 2013 are illegal and, therefore, null and void. The appointees and affected State Corporations should be notified accordingly.

Thirdly, by a copy of this letter, Permanent Secretaries/Accounting Officers have today been directed to:

(a) ensure that this directive is implemented immediately; and

(b) ensure, as earlier directed, that all major contracts and payments in excess of Kshs.500,000 are suspended forthwith. Any exemption to this particular directive must be sought from the Office of the President by the Accounting Officer on behalf of the Ministry or the State Corporation/Parastatal concerned.

Please give this matter your urgent and personal attention and confirm full and immediate compliance.

FRANCIS T. KIMEMIA, EGH
PERMANENT SECRETARY, SECRETARY TO
THE CABINET AND HEAD OF PUBLIC SERVICE

Copy to:

The Attorney General
Chairman, Commission for the Implementation of Constitution
All Accounting of Officers

How CORD's Petition Is Likely To Be Defeated At The Supreme Court

 
CORDs Allegations Vs Facts: By a Concerned Jubilee Supporter.
  1. Allegation: The Voters Register grew by 85,000. from 14,337,399.00 to 14,352,533.

Fact: The voter registration as at 18th December 2012 was 14,337,399.00 and from the data published by IEBC on summary of Registered voters are 14,349,896 a growth of a paltry 12,497 votes.

2. Allegation: That IEBC removed 20,000 voters from the register due to double entry resulting to voters register reducing to 14,269,752.  
Fact: Simple addition and subtraction mathematics of  14,337,399 - 20,000 = 14,317,399 and not 14,269,752. in addition CORD should be cognizant of the fact that the voters register was opened for inspection to the public for one month to correct any anomalies....and it was discovered most pple in west pokot, turkana, wajir etc had not been captured in the BVR register but were in the manual black book. This exercise was carried for one month and the anomalies leading to the addition and subtraction in all
areas the net effect yielding a net addition of 12,497 voters. looking at the affected areas county wise the leading areas where votes were added were are TURKANA (12,540)
,WEST POKOT (+13,092),TRANS NZOIA (+13,288) and many others in no pattern whatsover. its worth noting Turkana and Tranzoia were ODM strongholds. Also in most counties
voters reduced the most affected being Nairobi (-50,102), Kajiado (-10,707), HOMABAY (-5,872), MURANGA (-4,211) and many others with no pattern at all. The only pattern you can tell is that areas which are generally under developed had generally addition of voters and areas which are fairly urban and developed had there voters generally reduced.
The logic of CORD indicating that their voters were reduced and those of Uhuru is actually looking at the data i have uploaded is to say the least the reasoning of the absurd bordering on hate speech. CORD knew that legally IEBC had one month to open the Voters Register to the public for scrutiny for purposes of correction of omissions and removal
of duplicates. unless CORD is of the view that it was an illegality to clean the register i have no idea why they should be raising issues with the Voters Register. In my own assessment CORD having noticed that even in a repeat poll they are going to loose, they want the Supreme court to condemn the register so that registration can begin afresh hoping to encourage there supporters to register in large numbers.
 
3. Allegation: That the following constituencies Tiaty,laisamis,igembe central, Buri,Chuka,Lari,Kapenguria,Saboti,Turbo,Marakwet West,Bomet East, Mt. Elgon, Langata
and Aldai had the total votes cast exceeding the registered voters. 
Fact: I have painfully analysed all this connstituencis using the provisional register of 18th December 2012 and the register used on 4th march 2013 and found out in all cases there is no constituency from the above that had total votes cast exceeding the registered. This begs the question why should a lawyer make an allegation that knows very well that
it is false and the media din't even counter-check on the veracity of information given. this allegation falls flat and should be dismissed with costs B C D.

Constituency REG.18th REG.4TH CAST
B-D C-D allegation D>B Allegation
D>C
TIATY 19,960 20,469 17,950 2,010 2,519 -509 FALSE FALSE
LAISAMIS. 20,998 21,315 17,503 3,495 3,812 -317 FALSE FALSE

IGEMBE c. 53,128 56,111 49,358 3,770 6,753 -2,983 FALSE FALSE

BUURI 54,243 54,501 47,766 6,477 6,735 -258 FALSE FALSE

CHUKA 56,821 57,231 50,506 6,315 6,725 -410 FALSE FALSE

Lari 58,984 59,001 56,666 2,318  2,335 -17 FALSE FALSE

Kapenguria 37,099 41,328 36,266 833 5,062 -4,229 FALSE FALSE

Saboti 53,811 55,791 45,978 7,833 9,813 -1,980 FALSE FALSE

Turbo 87,108 87,332 73,434 13,674 13,898 -224 FALSE FALSE

Marakwet. W 39,311 36,055 32,729 6,582 3,326 3,256 FALSE FALSE

Bomet E. 41,487 41,009 37,364 4,123 3,645 478 FALSE FALSE

Mt. Elgon 50,972 49,387 44,419 6,553 4,968 1,585 FALSE FALSE

Langata 98,733 96,670 80,680 18,053 15,990 2,063 FALSE FALSE

Aldai 48,907 49,901 45,779 3,128 4,122 -994 FALSE FALSE

4. Allegation: Form 36 were used used although they were not signed.
Fact: Form 36 in aggregation of form 34. if form 34 are signed then the only mandatory fact is to confirm that the figures in form 34 have been transferred correctly to form
36.

5. Allegation: That IEBC allowed Kencall to host both TNA and IEBC Data hence TNA had access to IEBC Server and messed up the data 
Fact: This is where analog now comes into pay. its like saying since uhuru has a yahoo account then if raila has also a yahoo account then uhuru can get access to raila data. Kencall is a company offering hosting and connectivity services to anyone even cord is they want to host there server or web services there. even if you give any iota of truth to CORD allegation, voting went manual and the issue of server does not arise. 
In Summary:
The other allegations involve physical documents which I am not privy to but from the lies so far adduced b4 the supreme court. this suit should be dismissed with costs.

How Jubilee Rigged Elections - The CORD Propaganda

Panic has gripped the Jubilee Coalition headed by Uhuru Kenyatta as details unravel on how the 2013 Presidential Elections were manipulated to hand him a win by the Independent Electoral and Boundaries Commission – IEBC, that is now the subject of a Supreme Court petition.

The emerging details point to a shocking scheme hatched by circle of advisors and government functionaries within the intelligence and civil service, way before the elections.
Analysts scrutinizing documents ahead of the Supreme Court petition by the Coalition for Reforms and Democracy challenging the results, were stuck by how technology was also used to aid Uhuru “defeat” Raila Odinga of CORD.

“Kenyans can remember well that some curious things happened with regard to the so called provisional results that IEBC kept churning out”, says one of the lawyers handling the CORD petition.

“It was a statistical impossibility. Between March 4th – March 7th, Raila Odinga was consistently stuck at 43/44% while Uhuru stayed at 53%. Musalia was stuck at 2.8% while the margin between Uhuru and Raila remained at 600,000-700,000 votes. This was impossible considering that results were coming in randomly from all over Kenya. Yet these figures remained consistent”.

After a confusing Friday 8th March when IEBC postponed announcement of final constituency results till Saturday, a quick operation was put in place to force acceptance of the results, amidst anxiety by Kenyans that the voting process had been manipulated.
IEBC’s James Oswago reportedly called media houses late in the night for a surprise final announcement of constituency results Friday 12.30am without indicating who had won. 

Throughout the week IEBC had warned media from declaring anyone the winner. However 30 minutes later KTN and NTV got a “nod” to call the elections. From there on events moved quickly. At 1.30am KTN flew a banner indicating Uhuru Kenyatta was the winner. Several stations in surprise followed suit. Kenyans would wake up on Saturday morning to all TVs proclaiming “President Uhuru”, almost 12 hrs before Isaack Hassan finally announced Uhuru’s win on Saturday afternoon.

The Weekly Citizen in this exclusive report can now report stunning details of a rigging plot that would have passed undetected if all players had stuck to the script and the “tyranny of numbers” theory had not fallen flat on its face on March 4th.

According to CORD insiders and several statistics analysts who have examined the IEBC voter register when it closed on Dec 18th, over 1,500,000 extra votes were “unexplained votes” votes that were for the presidential result alone. Since according to the IEBC, every voter was given 6 ballot papers, IEBC will be hard pressed on how this happened.

If these allegations are proven then, Uhuru’s tally will render his  6,173,433 vote announced by the IEBC to 4,673, 433. Which could mean that Raila Odinga could have won the election if what CORD claims is true.

The well calculated scheme was based on 3 critical things that had to be done to force in Uhuru. The most important was to force a first round win for Jubilee.

“It was obviously clear to us that any run-off would result in an anti-Kikuyu vote in which only Kalenjins and Kikuyu’s would vote for Uhuru while Raila takes off with the rest of the country’, says Central Kenya Senator Elect over drinks at a popular Nairobi spot on the day the IEBC announced Uhuru as President. “Winning Round One was never an option. It had to happen”

Getting the numbers was an issue that had worried TNA strategists one year before striking an alliance with William Ruto’s URP as the Jubilee Coalition. Even if Ruto’s Kalenjin backyard was convinced to vote for Uhuru, the numbers Kalenjins brought in were still not enough. Though the “Tyranny of Numbers” propaganda was sold as a winning formula, insiders knew the truth held a different reality. The 50% was simply not there. The best Jubilee could manage was force a run-off their researchers said they would lose.

The tyranny of the numbers was the psychological component of the whole game; and the so was “PEACE” campaign enterprise, says a member of the civil society 

“It is Funny that the tyranny of numbers theory perpetuated by Political Analyst Mutahi Ngunyi done in February 2013 mentions the same figures Uhuru got in the final tally” says popular blogger Robert Alai.

Several contingency plans were made to ensure the plan succeeds. One was to ensure that the Kikuyu and Kalenjin voter turn-out was to hit 95% while hoping that CORD base’s turn-out would remain at the traditional 65% to 70%.

Like many assumptions made by the Jubilee strategy team, their plan on turn-out was based on assumptions that CORD’s base would barely attain their traditional turnout.  
The second critical factor was use of technology to help add up numbers as the infamous tyranny of numbers depended on factors outside Jubilee’s control.

This plan to be used was borrowed from Ghana’s December 2012 Presidential Elections. The election which is now being contested at the Ghanian Supreme Court was won by President John Mahama who was announced to have secured 50.7% of votes, enough to avoid a run-off against NPP candidate Nana Akufo-Addo with 47.7%. Akuf-Addo has filed a petition with evidence that the vote was won by manipulating the electronic system.

In the Ghanian petition, proof has been revealed the company hired by the Ghanaian Election Commission to supply data services – SuperLock Technologies Ltd – also had a contract with the National Democratic Congress to supply the same services to the party that included tallying. In the petition NPP says it had found irregularities such as cases of over voting and instances when people not registered by the new biometric finger-printing system were able to vote.

According to the NPP and the other parties, these numbers announced by the Ghana’s Electoral Commission did not correspond with actual votes recorded in the 275 constituencies. They allege tampering of numbers by the suppliers of IT services in favour of John Mahama. The commission also reported that turnout was at an all time high of 81%.
In a dramatic incident during the elections, NPP stormed the electronic suppliers premises and claimed to have caught the company’s data personnel altering results before transmission to the National Tallying Centre

Similar to the Ghanaian case, the company that supplied Kenya’s IEBC with the electronic data and call centre services is Ken Call. The company whose connection to IEBC were never made public was charged with supplying call centre services and hosting the data base from where the polling station results were remitted to the IEBC.  Ken Call also has a contract with Uhuru Kenyatta’s The National Alliance party to supply tallying services of results from polling stations!

“Results from Returning officers at polling stations being transmitted electronically were first relayed to Ken Call’s servers for onward transmission to Bomas”, an IEBC official told Weekly Citizen.

“Imagine the same server was being used to tally results for TNA! This is where the electronic tampering of results took place as it was easy to access the same server which was serving both the IEBC and TNA and managed by the same company. When questions started being raised about the contradiction between figures announced at polling stations and the ones on IEBC screens at Bomas, the system mysteriously crashed!”

The official says it is unclear when the company was hired by the IEBC and why the commission ignored the conflict of interest.

The Weekly Citizen has discovered that like the Ghanaian case the plan by to rig the Kenyan Presidential vote was 3 pronged;

First, encourage the purchase of BVR kits by the IEBC. The technology was simply meant to hoodwink the public and crash when plan B was to be effected. Using unorthodox means that included bribing IEBC officials, the more experienced 4G solutions which serves India that has over 500 million voters was disqualified and Code Inc given the job to supply the kits. Code Inc went into liquidation and was renamed Electoral Systems International after the Fijian government exposed the company to be a branch of the Canadian Intelligence Organisation. Part of the system’s technology was supplied by a company linked to a Mr Chirchir, a former Commissioner at the IEBC

Secondly, as Ghana’s NPP claims in their petition, the ruling party used Super Lock Technologies Ltd to hack into the system and pre-determine a mathematical formula that adjusts figures as they come for both candidates while keeping any other candidates at a predetermined formula to ensure they do not harm the intended outcome. (This possibly explains why Uhuru’s margins with Raila never changed even with random results coming from all over the country).  Yet even with this plan, Jubilee knew they would have to top up “few” numbers based as the 50% + 1 was still proving elusive with a week to the election.

The third and final strategy was the real plan. Play with Kenyans’ minds by manipulating results and establishing a lead for Jubilee then crash the system and go manual. This was arranged by declining to have a back-up server which would retain evidence of the manipulation. With only one server, a deliberate crash would be final and would destroy evidence.

According to Maina Kiai, former chairman of the a human rights organization the technology was a red herring.

“This election was meant to be manual from start to finish loopholes included” he writes in his Saturday Nation column. “A manual result is what would allow different results to be announced at the Constituency, County and Bomas. All these electronic gadgets and equipment were meant to pull wool over our eyes”

“Even with this plan, the team knew they would have to top up numbers based as the 50% + 1 still proved elusive with a week to the election” says a TNA Mp Elect.
Then March 4th came.

While the scheme was to “minimally” add votes to the “tyrannical numbers” to enable a Round One win, everything went wrong on March 4th Election day as the electorate in key battle ground areas stunned Jubilee strategists with an anti Uhuru vote.

Luhyas expected to vote for Musalia up to 50% rebelled and went for Raila. The 30% of the Kamba vote expected from Kitui through Charity Ngilu failed to come in. Coast where Jubilee were expecting a 50-50 share with CORD bolted to Raila. CORD and Raila took off with 70% of the Kisii vote. In Kalenjin land, voter turnout fell below 70%. The “tyranny of numbers” was becoming a flop. With predictions by Jubilee statisticians collapsing all over on Election Day, the team after consultations had to quickly switch to Plan B. 

“This plan was aided by the decision by the IEBC to keep open some polling stations well after 5pm, the official closing time” says an ODM Chief Agent who manned a County in Rift Valley. Plan B called for manual voting to improve the numbers. “In Rift Valley CORD agents were reportedly intimidated and some left the polling stations as die hard URP activists some of whom manned the polling centres now took over. “It was hard to control what they were doing after that. Some people were now being given 2-3 presidential ballots to get their target number. You had no idea who was voting and who wasn’t.”

As former Attorney General Amos Wako disclosed at a press conference last week “It appears the IEBC had several registers as they did not even gazette any. We will be asking the Supreme Court to examine which register was being used and which one was valid”.

It is obvious CORD’s petition will put IEBC to task show an increase in voter registration after the registration ended on 18th Dec. In some cases the register grew by 35% in one constituency after reconciliation. On December 18th 2012 @IEBCpagedeclared there were 14,337,399 Registered Voters. The Final Register indicates there were 13,352,533 Voters

Other than manipulate the register using technology, technology was also becoming an obstacle to get the right numbers and ensure a Round 1 win. The Voter Identification Kit which required fingerprint identification for voters could not be manipulated as “ghost” voters could not get in to vote or double voters. They had to be physically present.
By 2pm, a crisis meeting was convened by Jubilee strategists on how to shore up numbers in Rift Valley. 

Mysteriously the Finger Print Identification kit stopped working. Manual voting was introduced.

The IEBC electronic tallying system which was relaying fast results with a 53% lead for Uhuru four hours after 5pm, suddenly slowed down with just a million votes in. Then the “IEBC” server which in reality belonged to Ken Call crashed. And the results slowed down to a trickle. By 11pm IEBC announced to the press that announcement of provisional results had been halted and pushed to Tuesday.

Most IT experts confirm that the amount of data being remitted for the 33,000 polling stations in terms of text messages could not have crashed the system.

“It is very little data. Safaricom, Airtel and Orange deal with almost 300 million text messages daily. The data from polling stations was not that much”, says an employee of Safaricom on condition of anonymity. “What is puzzling is why on such an important exercise IEBC and Ken Call did not install the standard back-up server which would saved remitted results and revived the process”.

The CORD team believes Isaack Hassan’s explanations were a cover-up and that the technology “use” and “failure” were part of the strategy to rig the elections.  

“The electronic system kept Uhuru and Raila at particular percentages to psychologically make Kenyans believe Uhuru was winning and Raila was losing. However since the figures at Bomas were not matching forms 34, 35, 36, and the Jubilee “tyranny of numbers” formula had failed, the electronic tallying system had to go.

Maina Kiai is more brutal in his assessment calling IEBC’s excuses “hogwash”. “First it was that the server crashed. Then, than one side of the disk was full and unable to accept results. Then that presiding officers were slow in transmitting. The maximum capacity required for data from 33,000 polling stations is just 2GB, less than what a mobile phone can take!”

With the plan in progress for manual voting, by Wednesday Rift Valley Turn-Out was being reported at 90% while Central had risen to 95%. Based on the Kriegler report this numbers were obviously inflated. However more was required as Uhuru had dropped below 50%. So delays had to be created for Returning Officers to re-adjust figures.

The diversionary tactic kept Kenyans patient as Issack Hassan kept talking of delays caused by “verification”, “technological challenges” and introduced a phrase “complex elections” that would be repeatedly used throughout the Bomas process.

With the announcement that manual voting would be used, the vote tallying took a different outlook as the initial 48 hrs in which all provisional results were to be announced dragged into days and tallying began afresh. Questions about discrepancies by CORD officials resulted in IEBC throwing them out. A compliant media was threatened into silence and no criticism of the IEBC was to be aired.

The Bomas tallying centre was placed under heavy security as the once accessible Chairman of the IEBC now avoided all media questions regarding the process.

“This is the most opaque electoral commission and ranks lower than even the late Kivuitu Commission” said one of CORD’s lawyers James Orengo.

In the deliberate confusion that followed strange results started flowing off the IBC press briefings. Among the cases are;

Wajir North had a 92% Voter Turn-Out for spot whose history indicates 50-60%. In Wajir West, if the Final Register hadn’t been adjusted, 99.45% of the Registered Voters would have voted. In Nyaki East in North Imenti with 12000 registered voters 15300 are reported to have voted!

In Kajiado South, the people who voted (42,276) is higher than the people registered in Dec (41,040).Register adjusted to 46,218 to conform. In Sigor, the people who voted (19,704) is higher than the people registered in Dec (19,337).Register adjusted to 21,341 to conform.

“How does Turkana Central with 25,970 votes as at 18th Dec end up with 34,486 voters after reconciliation?! Where did 8,516 voters come from?” asks Dr Makodingo, a political analyst on his twitter page.

Worse still Worse still, IEBC’s figures refuse to add up inspite of efforts to “correct errors”. Valid Votes (12,222,980) plus Rejected Votes (108,975) add up to 12,331,955  and not their tally of 12,338,667!!

“It is strange that 1,500,000 persons only cast a vote for a president and across Kenya this number is reflected in joint votes cast for Senators, Governors, Mps, Women Reps or County Reps. It is an obvious case of manual ballot box stuffing and double voting for Uhuru” says Statistics analyst Dr Makodingo

Presently CORD may only have to prove that the 8,000 votes votes Uhuru received to add to his declared 50% is fraudulent. If that is done the Supreme Court can order a fresh poll within 60 days.

5 Most Intriguing Kenyan Presidential Election Petitions

The common chorus for election losers, from their opponents (surprisingly) has always been ‘Go to Court! Go to Court! File a Petition.’ In the backdrop of this chorus is that the Kenyan judiciary has never ruled in favor of the petitioner in a presidential election. The chorus is thus informed by the idea that the petition will be buried in such a barrage of legal complexities that it will never materialize. A lot has changed, especially in the last few years, but the question is, is it enough?

1. Matiba v. Moi (1993)

Most people remember this case only and with good reason. Matiba was the ‘rightful winner’ in the first multiparty elections, rigged out by an entrenced political system and weakened by wrangles in the opposition.
You can call him Daniel...okay no, you can't.

A strong candidate backed by the central region and basing his election on the incumbent’s errors in the his first 14 years in office, he lost because he and Kibaki (later 3rd President) split the core vote.
Tereeeeen...oh, what's that? Its no longer 1992? Ah....

In the second case (the first one matched the one filed by Orengo), Matiba covered the issue of intimidation, violence and other election irregularities.

As with all other cases determined by the highly biased judiciary of the Moi years, Matiba vs. Moi was dismissed on a flimsy reason. Kenneth Matiba had become physically incapacitated sometime prior to or during the elections and had given his wife the power of attorney. He did not personally sign the petition, a technicality that KANU lawyers pounced on until Justice Riaga Omolo struck out the petition. It later came back to haunt him, the judge, during vetting in 2012 when he was declared unfit by the Board specifically for this decision. “It gratuitously showed grave disrespect for disabled people, castigating the petitioner in an ungenerous and uncalled for manner.”

2. Orengo vs. Moi and 12 others (1994), Matiba vs. Moi, Imanyara vs. Moi

Orengo’s petition challenged Moi’s eligibility on the grounds that he had already served two terms in office. The challenge was that the term-limits rule applied to Moi who had already served three terms : 1979-1983, 1983-1988, 1988-1993. The case was simply about the intention of Parliament in passing Act No. 6 (1992) which the petitioners in the three different cases argued should have been retrospective (applied to Moi as well as future presidents).
Orengo, and the rest of the Young Turks. ..and no, the beard was not a necessity....

The court determined that a statute had to have the words to the effect that it could operate retrospectively and that “from the plain language of the statutes, they were to be interpreted to operate prospectively…”

 3. Mwai Kibaki vs. Daniel Arap Moi (1997)

Kibaki in 1997 was Matiba in 1992, number 2 and clearly rigged out by the incumbent. Kibaki published the notice of petition in the Kenya Gazette, the official government publication which Moi by his duties as a citizen and president should have been able to access and read.
Apparently, CAPS LOCK on a typewriter was not recognised too...

Judges Emmanuel O’Kubasu, Mbogholi Msagha and Moijo ole Keiwua struck out Kibaki’s petition on the simple basis that he had not personally served Moi with the petition.

This decision was later upheld in the Court of Appeal by Judges Chunga (CJ), Aa Lakha, Owuor JJ and Omolo (again).
This clearly unfair decision led to the explicit declaration in the new petition rules to avoid such a scenario: “Upon filing a petition, the petitioner shall serve the petition on the respondent within 24hours. Service of the petition on the respondent shall be —(a) directly on the respondent; or (b) by advertisement in a newspaper with national circulation,” Rule 8 says.

4. Mwau vs. Moi, 1992/3

When Mwau entered the political scene in 1992 as a candidate for the presidency and the Westlands parliamentary seat, he did so with the flair that later became his personal brand. He was a former police officer with a curious interest in the letter of the law. Mwau, stickler for detail and with billions to burn, rushed to court and filed a petition seeking to nullify Moi’s victory on the grounds that he (MOi) and all other candidates had not been properly nominated. He argued, in part, that he be made President because all the other candidates had failed to use the ‘right paper’ to present the lists of their nominations. He had only garnered 6, 499 votes, 0.1% of the total vote, the least in the elections, even less than David Mukaru Ng’ang’a of whom I bet you have never heard.

“There might be much difference between a foolscap of 8 1/2 × 13 1/2 in (216 x 343 mm) and the International Standards Organization A4 measure of 21cm × 29.7cm, but Mr. Mwau argued strongly that candidates do not have the leeway to decide which rules to observe and which to ignore.”

While the case was dismissed, the court praised Mwau for his keen eye for detail, resilience and tenacity.

President Moi and all the other candidates, save for Mwau, in the 1992 election ignored the rules and presented their documents on A4 instead of foolscap paper.

Mwau, representing himself, “implied that a pool of presidential candidates who could not understand the distinction between A4 and foolscap could not be fit for high office. He also stated during the case that the simple disregarding of such a key rule was an indicator that the president would likely ride to roughshod over the law.” Since then, presidential candidates have been extra keen on the stipulated size of paper.

5. CORD vs. IEBC/Jubilee 2013

Whichever side one’s political allegiances lie, this case will be the ‘Mother of all Cases’. The CORD legal team is a curious combination of lawyers Mutula Kilonzo and Orengo as advisors, both on opposite sides in the case the latter filed against the former’s client, president Moi, in 1992. Also in the team is Gitobu Imanyara, another petitioner who lost a petition where Kilonzo represented Moi.

Pheroze Nowrojee, another member of the team, represented was in Kibaki’s 1997/8/9 petition legal team. Note also the presence of Amos Wako, former Attorney General, in the legal team. If anything, this case promises to be precedent setting. Note how the March 4th elections were defined by the previous presidential election petitions. The extra care paid to the type of paper, the method of filing the petition and the application for disclosure of evidence. The time the SCOK can take to determine the case is also explicitly stipulated, seeing that Kibaki’s petition against Moi was determined 18 months after the elections.

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