President Uhuru Kenyatta has accused his main challenger in the 2017 general election Raila Odinga of trying to fish for evidence to enable him build his case by demanding a trove of documents and data from the electoral commission.
Mr Kenyatta, through his lawyers Ahmednasir Abdullahi and Fred Ngatia, argued that by asking for the Forms 34A and 34B and the logs from the servers as well as the gadgets, Nasa was making an application they have not pleaded in their petition.
“It is trite law and the practice that a party cannot depart from its pleadings.
“What Nasa is essentially doing is demanding for evidence. They are saying that if we don’t get this evidence, our case will collapse,” Mr Abdullahi said.
The judges will decide on Sunday whether Nasa is to be allowed, with Chief Justice David Maraga saying they were at sea regarding how long it would take to analyse the documents and logs.
“What you, all the counsel, are not telling us is how long it would take.
“You are telling us a few hours, the others are saying three weeks,” he told Mr James Orengo, Mr Odinga’s lawyer.
Mr Orengo had initially said it would take two days to analyse the kits and logs but later said that could take five hours if the information is provided.
Mr Muite said it would take three weeks.
Mr Abdullahi said the parties in the case find themselves in the same situation they were in, four and half years ago, when Mr Odinga filed a petition challenging Mr Kenyatta’s win.
And in a similar situation, Mr Odinga is making the same application and seeking the same information.
“It is not a function of this court to help a party build its case,” Mr Abdullahi said, adding that there is no provision in law that can compel a public body to provide information to assist Nasa build its case.
He said it will prejudice Mr Kenyatta if Nasa’s application is allowed.
Mr Abdullahi said Safran Morpho, the company that hosted IEBC’s servers, “is not a Mickey Mouse company” and it would not be easy to just get the logs demanded.
Mr Ngatia wondered why Nasa was seeking the forms yet all presidential candidates were entitled to have agents at every polling station.
He suggested the court could order a tallying process for the contested areas.
“We oppose the application in its entirety,” he said.
The seven judges will deliver a ruling of the application by Nasa on Sunday (today).