Supreme Court retains hot air, wild goose chase claims in verdict

"The Form 34A for Gacharaigu Primary School which was sensationally presented by Julie Soweto, Advocate, to show that one, Jose Camargo, accessed the RTS and interfered with the result contained therein turned out to be no more than hot air and we were taken on wild goose chase that yielded nothing of probative value," the judgement released yesterday reads.

The judges maintained that the evidence adduced by Azimio lawyers, including one by Celestine Opiyo to show "staging" of results was, upon analysis and in its totality, "most wanting in value and did not point to any staging of Forms 34A as alleged."

Independent Electoral and Boundaries Commission (IEBC) Commissioner Justus Nyang'aya's evidence on opaque results was declared to be "of no probative value" and "unhelpful to the petitioners."

On the face of false evidence adduced, the judges were brutal, declaring that some of the allegations on hacking, dumping and infiltration of the system did not require their attention at all. "The purported evidence of Celestine Opiyo and Arnold Oginga sworn in their respective affidavits was not only inadmissible, but was also unacceptable," they ruled.

Former anti-graft Czar John Githongo bore the brunt of the utterly disappointed judges. They described the matter of his affidavit "a sad issue" saying it contained misleading and fabricated evidence.

It did not help that Githongo subsequently withdrew parts of his affidavit.

"Obviously, neither the withdrawal of the logs nor the explanation thereof are acceptable and amount to outright dishonesty," they said.

"It was also a radical departure from the pleadings of the 1st petitioner and completely altered the substance of their Petition fatally. A party or witness cannot approbate and reprobate, more so under oath," they added.

Soweto's claims during the hearings on third party interference with results was dismissed as "another sensational piece of evidence."

In turn, IEBC's explanation of the Carmago situation was hailed by the court as "overly credible, and a convincing rebuttal" to Ms Soweto's claim on the issue.

The judges dismissed petitioners claims on voter suppression reminding them that in general, "this year's elections recorded one of the lowest turnouts since the reintroduction of multi-party politics, 30 years ago."

"If there was a low voter turnout, it affected all the six categories of candidates and its explanation, in our view lies elsewhere but certainly not a calculated suppression," they said.

The issue of suppression of voter turnout through postponement of the election also earned another brutal reference; "just another red herring."

"It has nothing to do with the question under review, and accordingly we reject it," they said.

The claims that Kenya Kwanza luminary Moses Wetang'ula, now speaker of the National Assembly, colluded with IEBC to alter course of the election received a similarly cold verdict: "These were merely, general statements not backed by cogent and credible evidence."

Finally, the court revisited the public criticism of its decision. The judges said they would not be cowed as they understand very well that a determination of any matter by a court of law can never be in favour of both sides.

"While a party or its counsel may understandably be aggrieved by a decision of the court, it does not help or take away such grief by resorting to insults or vitriolic attacks on courts," they advised.