Lawyers for President-elect William Ruto yesterday defended his victory in last month’s presidential election, telling the Supreme Court that the petition challenging his declaration as winner lacked merit and ought to be dismissed with costs.

In a three-hour submission, Ruto’s legal team led by Senior Counsel Fred Ngatia sought to dismantle the petition lodged by Azimio-One Kenya presidential candidate Raila Odinga. They told the top judges that Ruto’s win was legitimate and deserved to be upheld by the apex court.

Further, they said the seven petitions seeking to quash Ruto’s election had not been backed by adequate evidence. They challenged the judges to look at their submissions and approve the results declared by the Independent Electoral and Boundaries Commission chairman Wafula Chebukati on August 15.

The lawyers anchored their case on the authenticity of the Forms 34A, the alleged hacking of the commission’s servers, the conduct of Chebukati, the visit by the members of the National Security Advisory Committee to the National Tallying Centre at Bomas and the role of other commissioners in the declaration of the final presidential results.

The fracas that occurred at Bomas of Kenya before Chebukati declared the final results also featured at length with the lawyers saying it prevented the reading of results from 27 constituencies which had been tallied and verified.

Constitutional crisis

After the petitioners laid their case on Wednesday, it was the turn of the respondents yesterday to give their side of the petition.

IEBC’s lawyers spent most of the morning justifying Ruto’s win and it was his advocates’ turn in the afternoon to buttress what the electoral body told the court.

Ngatia asked the court to find the “substantive truth” in the presidential election and deliver a judgment that will bring finality to this year’s electoral process.

“The people of Kenya did express their sovereign will. What is under inquiry is whether that will stand or whether the court will consider any other remedy other than the sovereign will of the people,” he said.

He, however, warned that annulling the results might subject the country to a constitutional crisis never seen before.

“The problem is that we are unable to inculcate the habit of accepting electoral defeats. Allowing the petition will lead to a crisis of monumental nature, a crisis I don’t think the court would want to play with. It will be fire upon fire. This is a crisis this court cannot countenance,” Githu said.

Members of his legal team — Senior Counsel Kioko Kilukumi, Kithure Kindiki, Katwa Kigen, Muthomi Thiankolu and Melissa Ngania — took turns in their quest to dismiss the petition. They presented countering evidence, which they said proved that their client won the contest fairly.

They accused Raila’s team of presenting doctored Forms 34A, including one from St Martin’s School Kibarage Polling Station in Westlands, in a bid to prove his case. They asked the judges to take time to scrutinise the forms IEBC presented to the court against what was submitted by the petitioner. The forms contain results of the presidential poll as announced in each of the 46,299 polling stations.

The court allowed the recounting of the ballots from 45 polling stations on Tuesday and the report will be presented to the court today.

Kilukumi focused on the visit by members of the National Security Advisory Committee to the National Tallying Centre early on August 15 where Chebukati has claimed in affidavits presented in court that he had been asked by the team to declare Raila as the winner and if not to call for a run-off.

Chebukati also said he was warned against declaring Ruto as the winner to avoid destabilising the country.

The lawyer said the court should believe Chebukati’s version of events after members of the security committee countered his claims.

He said the members could have gone to the venue to instigate violence after their demands went unheeded.

“Do you believe the NSAC members were going to discuss security matters yet in less than an hour the commissioners are being assaulted and nobody was arrested yet those who attacked them are all known?” asked Kilukumi.

Earlier, Senior Counsel George Oraro, who represented Attorney-General Kihara Kariuki, defended the committee members, saying they had visited the centre to appraise themselves on the tallying and to find out why live streaming of the results had stopped.

“These are eminent members of the society, the chairman has tried to sully their character,” Oraro said.

While poking more holes in Raila’s petition, the lawyers questioned his decision to raise issues around the IEBC’s processes at the tail end of the exercise, saying he was only dissatisfied after losing.

“The petitioner was happy with the process up to the last minute when the results showed a different outcome than he expected… the petitioners have failed to discharge their burden of proof which is above the balance of probabilities,” said Katwa Kigen.

Angry litigant

They also sought to paint a picture of an angry litigant who was clutching at straws in an attempt to convince the court to rule in his favour after losing.

“The petition before you is a work of fiction. It is full of sound and fury. It is akin to a tragicomedy, it is a combination of tragedy and comedy… I suggest politicians should stick to politics and (leave) fiction to artistes,” said Thiankolu.

On the commotion at Bomas, Kindiki likened it to the January 6, 2021 attack on the United States Capitol Hill which houses the US Congress.

Then, supporters of incumbent President Donald Trump attacked the premises as they tried to stop the tallying of Electoral College votes earlier announced in favour of rival Joe Biden who was later declared the winner.

Kindiki said those who caused the chaos are roaming freely around the country despite being captured on video committing the acts.

“Some of them are in this court. The events of the fated day mirror what took place in the United States in February 2021 when a mob laid siege on Capitol Hill following the defeat of President Donald Trump,” said Kindiki.

After they made their responses, the judges retreated in the evening to frame some of the questions they wanted the lawyers to respond to this morning. Among the issues they raised were how the technology worked, how the constitutional threshold of 50 per cent plus one should be arrived at and whether there was voter suppression in some areas where elections were delayed.

 (see separate story).