Supreme Court Judges questions for Raila to respond to


On a hearing session on Wednesday, August 31, Chief Justice Martha Koome allowed judges to ask Raila’s lawyers questions, led by Senior Counsel James Orengo.

The following is a compilation of the questions and points of clarification sought by the seven-judge bench:

Justice William Ouko
What is the purpose of rejected votes when tallying the results of the outcome of the vote?

Supreme Court Kenya

When elections differed in given areas you claimed that it resulted in voter suppression. Those people wake up early in the morning to go and vote for a particular candidate say an MCA or senator. Do we have any evidence on this or is it just an assumption that this happens?

What are some of the elements that must be reached before the court can act or grant relief under Section 80 (4)?

Justice Isaac Lenaola
You raised the issue in PDF format of form 34 As but in the pleadings, there is the JPEG question. Would you like to clarify that? In the context of doctoring and tampering and so on, explain to us how that happens in real time.

Justice Njoki Ndung’u
What you are telling us is that form 34 As went to the KIEMS kit at the polling station to the constituency, then from the constituency and the portal, the numbers were changed.

I presume that when the KIEMS kits take the image, and the forms were filled in handwriting, how can you explain then how a form can be changed in handwriting because this is not typed?

On the voter repression issue, each of these elections is separately provided for meaning they are six separate elections in one.

Is the voter repression only to the presidential election or is that an argument that can be used by an MCA in Kakamega County to say that because the gubernatorial vote has been canceled, my vote was affected because they were all separate elections?

Justice Smokin Wanjala
The elephant in the room is 50 percent plus one. What is the relevance of the percentage of voter turnout to determine whether a candidate amassed the magical number?

The original form 34A leaves the polling station to the tallying center by road, its image goes to the same destination virtually. Somewhere it is compromised which means you would find different content.

To determine this, you would need the physical form. Is it possible that the capturing that happened mid-air also somehow magically changes the content of the one that was left by the road?

Justice Mohamed Ibrahim
I am concerned with the alternative relief sought. The petitioner requested that there should be a nullification, then a recount and the chair be ordered to declare him and the second petitioner as the winner.

We would like you to lay a legal and constitutional basis for this in your response on this.

You want a fresh election to take place. One of the reliefs you are asking is that the Chairman of IEBC is mentioned as unsuitable for public office, how is that possible? How do you want us to navigate that within the law?

What is the actual state under the law?

Justice Philomena Mwilu
What we have heard about a commission is similar to what an accident witnessed once described as a video and drama.

When did this commission become so dysfunctional? What corrective measures were attempted and with what result?

On Forms 34A, in what format is it when it leaves the polling station as the things that happen in between must be described by the same?

What action can be taken as a corrective measure against the Chair and is it to ignore the constitutional procedures and safeguards already in place?

If every process undertaken has so far been challenged, are we nevertheless to declare the winner? Should we use the same figures ( given by IEBC) to declare the winner?

Chief Justice Martha Koome
My dilemma is that this is a constitutional officer (Chebukati) holder and that there is a procedure to remove such. How do we go about that?

Should we make an order contrary to the constitution given that he also has a right of reply?

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We have an Election Offenses Act and anyone who commits any offense ought to be charged before the court with the jurisdiction and I informed magistrates to work on the same, wouldn’t we be taking over the power of the magistrates if we have to make any order regarding election offenses?

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