Nairobi — Azimio La Umoja - One Kenya legal counsel have decried the standoff at the Independent Electoral and Boundaries Commission (IEBC) offices at the Anniversary towers over the opening of the servers saying it has not been resolved.
Counsel Paul Mwangi told the court that the technical experts have been engaging in technical arguments despite a court order to allow the scrutiny of the electoral commission's server.
Mwangi noted that ever since 3pm, they had been embroiled in arguments between the different parties stalling the progress.
"When it came to implementing the orders, new arguments kept coming up. In my estimation what I found is that there was nobody at IEBC who this order is directed to make sure the matters are done," he said.
Azimio's counsel further noted that the Supreme Court was not direct to any individual in the commission to ensure its implementation as the contention is on how many servers the parties can have access too.
Raila Odinga's lead counsel James Orengo raised the matter of noncompliance as co-petitioners made their submissions on Wednesday saying the IEBC had only opened one server out of eight available.
"Unless this court addresses its order at a specific person who then can come when there is doubt as to what these term mean, then this confusion will go on," Mwangi said.
"This court need to make someone responsible for the implementation of the order," he added.
Responding to Mwangi's concerns however, IEBC assured that the four compliance items raised the only one that has been unresolved is the question of forensic imaging.
"It's certainly cannot be true what legal counsel Paul Mwangi is saying there is no progress, because that would impute that the council is even saying that the court is not saying what is happening," Gumbo said.
The Supreme Court has reassured petitioners in the consolidated presidential election petition of the compliance to an order it issued on scrutiny of the electoral commission's server.
"What we gathered is that there is progress but let us revisit later today after we leave here. As far as we were concerned is that they would do some cloning and then issues that this team would have would be present to us tomorrow," he stated.
"Let us go back ourselves get report from our team and should there be any need for direction from our team we could do that remotely and if not we give a report in the morning,"Justice Isaac Lenaola stated.
The apex court which commenced hearings on the petition on Wednesday after conducting a status conference on Tuesday responded to the concern on returning from a 15-minute break.
Justices of the court had ordered a recount of ballots form fifteen polling stations listed by one of the petitioners as well as election servers to ascertain claims on system manipulation.
Earlier on, lawyers representing the lead petitioners - Azimio presidential candidate Raila Odinga and his running mate Martha Karua - made their oral submissions challenging William Ruto's declaration as President-Elect saying he failed to attain the 50% plus 1 threshold set out in the constitution.
The legal team led by Senior Counsel Orengo also questioned the discrepancies between votes cast in the presidential election compared to other electoral contests including gubernatorial races held concurrently.
They dismissed reports of stray ballots as well as prison and diaspora votes which are limited to the presidential election -- that could account for the discrepancies -- as improbable.
Lawyer Julie Soweto also alleged manipulation of tallies saying votes cast in favor of Azimio candidate were in some instances deducted.
Lawyers Paul Mwangi and Pheroze Nowrojee completed the lead petitioners' arguments after the court capped the number of lawyers for main parties at four.
Nowrojee faulted IEBC Chairperson Wafula Chebukati accusing him of dangling the August 9 presidential election adding that he should not remain as the head of the electoral agency whatever the outcome of the petition was.
Under guidelines issued by the court on Tuesday, Odinga's team was allocated three hours with six other petitioners in the consolidated suit allotted thirty minutes each with the number of counsel speaking capped at two for each.
Others who addressed the court were lawyers representing Juliana Nyokabi, Simon Mwaura and Joseph Mutua.
The court also heard arguments from lawyers representing four IEBC commissioners - Juliana Cherera (Vice Chairperson), Francis Wanderi, Justus Nyang'aya, Francis Wanderi and Irene Masit - who disowned Chebukati's declaration of Ruto as President-Elect following the August 9 presidential election.
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The four commissioners were allocated an hour with each having a lawyer to make presentations in support of the petition.
On Thursday, the IEBC and its Chairperson Wafula Chebukati will have three hours and a total of five lawyers - four of whom will represent the commission - to argue their case in opposition to the petition.
The commission's submission will be followed by Ruto's whose team of four lawyers led by Senior Counsel Fred Ngatia who were allocated three hours.
Submissions on Thursday will conclude with presentations from the Attorney General (thirty minutes), and three amicus curiae who will not address the court but instead rely on written briefs.
The three included the Law Society of Kenya (LSK) in whose respect the Koome-led bench said the threshold for admission as amicus curiae had been met with the applicant having demonstrated impartiality, a key requirement for admission as friend of the court.
Justices Martha Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko however noted that as amicus, LSK will only address the court through its written brief and will not be allowed to make oral submissions.
