Kenya court orders retallying of results in 22 polling stations By EMMANUEL TOILI in Nairobi | Monday, March 25   2013 at  16:05

Kenya's Supreme Court judges led by the President, Dr Willy Mutunga (centre) in Nairobi, November 8, 2012. The Supreme Court is holding a pre-trial hearing of the three petitions challenging the validity of the presidential results and is expected to zero down on the main issues raised by the litigants. FILE | NATION MEDIA GROUP 

Kenya's Supreme Court Monday ordered the scrutiny of two key documents used to tally votes, chiefly Form 34 from all the country's 33,400 polling stations-- and all the Forms 36 used in the tallying of the presidential votes.

The court also ordered re-tallying of the presidential results in 22 polling stations using Forms 34 and 36 so as to determine the numbers of votes cast over number of registered voters.

This will start Tuesday from 0500GMT.

In the ruling, Justice Smokin Wanjala said the retallying would aim to show if the number of votes cast exceeded the number of registered voters.

Judge Wanjala also ordered that the results from the 22 polling stations be filed at the Supreme Court registry by Wednesday 4pm after re-tallying.

The court also ordered that all the representatives and agents from the petitioners and respondents in the recount process to take an oath.

The court also approved the application by the Attorney General to act as 'a friend of the court' in presidential petitions, but dropped the Law Society of Kenya (LSK) application.

The judges also consolidated three petitions and allowed the Cord (the coalition challenging the results) petition to take lead.

Early in the day in his opening remarks, Chief Justice Willy Mutunga said the judges will be objective in its ruling on the petition.

"We as judges are servants of the law. We shall be objective," he said.

Dr Mutunga also urged Kenyans to accept the final decision that will be arrived at by the Supreme Court and move on.

"Whatever decision emerges from this petition, we must march forward," he said.

Apart from the petition filed by Cord's presidential candidate Raila Odinga challenging the declaration of Jubilee's candidate Uhuru Kenyatta as winner of the presidential election, there is another filed by a civil society group, the African Centre for Open Governance (Africog).

Spoilt ballots

Also before the court is a petition filed by some members of Mr Kenyatta’s campaign team, social media activists Dennis Itumbi and Moses Kuria and a third person, challenging the inclusion of the spoilt ballots in the calculation of votes attained by each candidate.

The objections raised by Mr Kenyatta and deputy president-elect Mr William Ruto, the Independent Electoral and Boundaries Commission (IEBC) and its chairman Issack Hassan, will also be narrowed down to what will be argued verbally in court.

While addressing the court, Attorney General Githu Muigai sought to be enjoined in the petition as amicus curiae or a friend of the court.

"We can only be enjoined in the case on the discretion of the Court," said Prof Muigai.

However, Mr Odinga filed an objection to the Attorney General joining the presidential petition.

Prof Muigai also argued that his appearance in the petition was not to support any party, but to lay down law as it is with authorities from across the globe.

"The AG's role is to elucidate on legal issues, not to support any side," he said.

However, IEBC boss Issack Hassan's lawyer Ahmednassir Abdullahi said his client had no objection with the appearance of AG in the petition.

"The AG's role is to elucidate on legal issues, not to support any side," he said.

Lawyers Katwa Kigen and Fred Ngatia also had no objection to AG being enjoined in the petition.

Notably, lawyer Kethi Kilonzo for Africog argued that issues before court did not require an interpretation of the law to warrant inclusion of the AG.

A civil matter

However, Cord's lawyer George Oraro argued that the AG had applied to be enjoined without request from the court or any party.

"The AG has misinterpreted circumstances under which he can apply to be enjoined in cases before court," he said.

"An election petition is not a civil proceeding. The government is not defined in the Constitution but state is defined," he added.

Mr Oraro argued that in relation to this petition the AG can be enjoined by the Constitution to assist the IEBC.

However, Prof Muigai disagreed with Mr Oraro and argued that the petition was a civil matter.

Prof Muigai argued that as amicus curiae, his office would not impose views on the court hearing Cord's petition against Mr Kenyatta.

"I have not advised the president-elect, contrary to claims by lawyer George Oraro," he said.

Lawyer A.B Shah also lodged an application for LSK to be enjoined in the petitions before the Supreme Court as amicus curiae.

The judges, led by Dr Mutunga, could either dismiss the petition, order a re-count of the presidential votes, settle on a re-run, or rule that the whole process begins afresh with the registration of voters.

The actual hearings of the petition are expected to start on Thursday and could continue un-interrupted until concluded.