Lawyer Ndegwa Njiru faces judge ruling in favour of Wamuthende in Mbeere North by-election

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[00:00:00]of the National Assembly.

[00:00:05]Orders accordingly.

[00:00:14]>> Yeah, my lord. Uh we are most obliged by the decision of the court. We have sat and listened to it. We appreciate where the court is coming from.

[00:00:26]But we however would wish to make an appeal in regard to some of the issues the court has dealt with. And therefore my lord we are making an application for expeditious provision of typed proceedings.

[00:00:50]the judgment of the court and the decree ring there from your lordship. The reason for the appeal is my lord that uh this might be the only time the certain issues will be clarified by the court of appeal.

[00:01:08]most importantly the question of the alteration of the Was register and my lord since I'm not making an appeal before you would wish to make the court of appeal pronounce itself.

[00:01:25]Number two, your lordship on the question of um the scrutiny that was dealt with by the deputy registra.

[00:01:34]Lord, we have listened to you and the judgment and we know that the judgment itself does not caption the entire report as reported by the deputy registister and most importantly in respect to ballot box number 35 and the 212 votes that were cast in foil. We've not heard you pronounce yourself on that.

[00:01:57]your lordship would would therefore wish to make an appeal and then my lord I don't know how that will square out because it has not been captioned in the in the in the in the in the uh in the in your judgment because my lord when you order >> it should be easy enough because the proceedings of the registra will be part of the proceedings of my lord so you just annex them and say that the court the lower court failed to deal with an issue >> my lord we we will we will be we'll be obliged we are always happy uh um [snorts] that the court has made its decision. We'll try our luck in the court of appeal. We are most obliged.

[00:02:34]>> Fortunately, the um the judgment is typed already.

[00:02:40]>> Yes, my lord.

[00:02:41]>> The proceedings are typed, so it should be fairly easy to get the the the record fairly quickly.

[00:02:48]>> We will get it, my >> Yes. Wa.

[00:02:53][clears throat] And uh I thank you for for that judgment.

[00:03:01]Uh but not I just have one request and uh as we review the judgment so that then we can see what we we make of it in terms of uh what is the next step. We would just like to make an application for state of execution on the issue of costs because we know we have money in court.

[00:03:39]>> Go ahead.

[00:03:39]>> Yeah. So that lord um the issue of cost may be given about 30 days for us to review the judgment before the money is uh is released if uh such an under sought so that then we can make the appropriate application if any appointing instructions okay so that as mru mentioned And if there's any need for review or clarification from the court, then we can come to consider all these options.

[00:04:16]>> All right, >> that's all.

[00:04:18]>> Thank you.

[00:04:18]>> Um, yeah, I've been informed that I seek 45 days.

[00:04:25]>> 45 days.

[00:04:31]>> I think you have 30 days actually.

[00:04:35]>> I think Well, yeah, he's asking for 45.

[00:04:38]Yes, I I hear you my lord. Yes, >> we would be opposing the request for stay. My lord, there is no indication upon which such stay would be predicated. My lord, no appeal has been filed as yet.

[00:04:54]>> Even the costs have not even been assertained.

[00:05:02]Mal on the second issue the IMC takes notes of not note of the issues you have raised and they welcome the report which you'll be extracting and sending them from this judgment you my lord which is going to to inform their improvement the improvement in terms of how they conduct their affairs and how the elections can be improved better otherwise my lord on behalf of the electoral body.

[00:05:32]>> Let me summarize it. Yes, my lord. This >> Yes.

[00:05:36]>> Uh just sit down.

[00:05:38]During the hearing of the case almost without exception, every IBC officer who gave testimony asked, "Did you report?"

[00:05:53]He also said, "Was this outside the polling station?"

[00:05:59]Did this occur outside the polling station? I gave a long introductory discussion about the powers of IBC because it is important for IBC to remember that during or in connection with anything to do with elections, IBC is the policeman of Kenya. It's not the Kenya police.

[00:06:24]So that you cannot ring your hands and said it was not reported. We don't have an OB. No complaint was made. You have seinal powers.

[00:06:33]IBC.

[00:06:35]You have powers as a commission even to investigate.

[00:06:40]You just need to read the newspaper. You hear something occurred, you run. Just like the Kenya Revenue Authority.

[00:06:47]When they hear ching ching ching in your mobile phone, they come running. that is how ABC is supposed to operate under this constitution and the laws. So that is one of the big areas I'll be discussing uh in the recommendations in India. It it is clear that IBC behaved sorry not IBC the electoral commission there behaved the way IBC behaves today.

[00:07:13]They changed they became proactive.

[00:07:18]The code of conduct is enforced in India and in fact in India the petitions are very very few. I was there myself personally. There are hardly any petitions because IBC does its work.

[00:07:34]>> Yeah my lord.

[00:07:36]No, this is not part of the judgment.

[00:07:38]>> That's correct, my lord. It's also my observation and my lord um the reason why we would wish to have some such some of these issues clarified would not wish my lord even to disturb that kind of fighting because my lord this is the first time >> I have heard an election court making such kind of pronouncements in respect on how the IBC is supposed to conduct.

[00:08:00]So my lord, even when you hear us making an appeal, we just want to make sure that we betray some of those issues that you have said in your judgment.

[00:08:09]>> But you will notice that uh in discussing the powers of IEBC and its uh its authority this was not in in respect of an issue for determination. So all all that is mostly >> what we call it what orbiter?

[00:08:23]>> No, it's not orbiter. You're supposed to pronounce yourself in a manner that the law speaks. [laughter] >> It's not.

[00:08:29]>> All right. Anyway, you will take the you will take the judgment to the next court. But the what worries me is what I see every day happening because we are all Kenyans. We are we see things that occur. We hear when there's an election petition or an election sorry in any part of the country. It's reported in the newspapers.

[00:08:48]There are clips from all sorts of places. We we don't believe everything but we we we are able to get the general mood of people and that mood although we don't we cannot represent it in our judgments it has to come through evidence parties have to bring the evidence even all this bribery I've actually seen myself clips of people standing in a line being given money it's just that nobody takes them to court but these are things that IBC can has has the power to ctail even under the constitution under the constitution and the DPP cannot say that he's the only one who can uh investigate or prosecute because the powers have been given under and and under under the constitution to a statute for prosecutorial. So, one of the things I'll be proposing is that is the um the setting up of an inspectorate of IEBC.

[00:09:49]That's one of the things I want to recommend. I can't recommend those things here because that would be it would it wouldn't make sense. But there must be some kind of inspectorate. I I I I know I don't know how Kenya Revenue or or Kenya Anti-Corruption Commission how how they do it. But however they do it, they seem to be fairly effective. That's what we want with IEBC because the constitution guarantees us a free and fair election. It guarantees Oeti that when she's going to her polling station, nobody is going to Sumba.

[00:10:21]No, I'm going to vote and I'm going to vote for who I like and if I take your money, I'll still vote for who I like.

[00:10:28]Okay, so that that's the key point.

[00:10:30]Sorry. Anything else? Um yeah, maybe just as I thank you for the way you have conducted the proceedings and the efficiency >> also to bear in mind the timelines which the respondents are really given to respond to this such a bulky election petition a single seven days >> some of the irregularities my lord which may go unexplained could be because of this scarcity of time my lord um otherwise it's to say that Yes. Yes.

[00:11:02]>> Did you do you put it in the report?

[00:11:03]>> I did. You did.

[00:11:04]>> I did my lord.

[00:11:05]>> Okay.

[00:11:05]>> Otherwise, we take a lot of lessons as IBC and we appreciate you a lot and your entire staff. Thank you very much and even to council who appeared in this matter.

[00:11:18]>> Yes.

[00:11:20]The fourth respondent, we appreciate the announcement except on one. I think Mandela has taken the bulk of of the cost.

[00:11:32]>> Perhaps we'll have a a discussion before you can share something with us otherwise not we happy in the manner in which you conducted these petitions.

[00:11:45]We also have the judgment that you pronounce today.

[00:11:50]>> Of course, you would be [laughter] naturally >> but uh on my part I'm most impressed by the time you've taken to give IBC the teeth that it seems to have lost.

[00:12:08]I think for me that's that's a very corrective judgment which clean up for practice.

[00:12:20]>> Yeah.

[00:12:21]>> Otherwise, thank you very much from the fourth respondent and my colleague has something to say.

[00:12:28]Thank you.

[00:12:36]My lord, uh we welcome the world peace on judgment or on court which has really shed light on very issues that arose from the petition and our father who is present.

[00:13:06]takes the this opportunity to extend a hand of friendship to the petitioner.

[00:13:15][clears throat] Now that uh the court have decided and as we are aware politics and democracy in their very nature are competitive.

[00:13:32]But it takes a wise soul to accept the electoral and judicial outcome in straight and I recognize that Mr. is already in agreement with the position taken by this court and indeed he says he wishes to go to the court of appeal to back press the decision of this honorable court. So we we are of the view that uh Mr. hero may want to take into consideration the will of the people the constituents of Both who will decide that going forward the game moves from the court to the ground in terms of development programs in terms of rendering of services such that no more attention will be devoted to court proceedings.

[00:14:42]Therefore, the respondent has had a lot of distraction during the time when these proceedings were in progress. He had to shut between the constituency and the court and that has undue impacted on his ability to fulfill the promises that he made to his constituents. So we would be glad if this matter can rest at this stage. We continue to celebrate the wisdom of this court together with the practitioner and it will be good for for all all of us because sometimes you win sometimes you lose and even then the next election cycle is just uh one year away and uh I'm sure my our client before the respondents >> will be willing to make some considerations which would be favorable to the petitioner depending on how the petitioner takes the outcome of this proceedings. Now with regard to the prepare for the cost, we'll also be making an application that the amount deposited as security for deposit be released to to the respondent has not been assessed.

[00:16:10]>> Are you making that application now? It has not been assessed >> because I've already given a stay of 30 days. So even if you make the application, >> it will not affect the stay.

[00:16:20]>> Absolutely.

[00:16:21]>> Very well. Then the amount can be released to the respondents on the 31st day. [laughter] [laughter] Judge uh we we thank you for the detailed judgment and the way the court has conducted uh this particular petition. I I as Kiri I'm the senior most for the petitioner and on behalf of the petitioner we thank the court for the judgment at the same time uh to remind my colleague Mr. commodo that the petitioner and the four the respondents are friends and they will remain as friends besides their political diversity. Um one issue we would like the court to give directions on the electoral materials. My colleague had requested me to mention that and also the keys that we are holding for the safe um room going forward. We shall be inviting uh Judge Karoi to thank the court formally on behalf of our team.

[00:17:37]>> Let me I forgot to say anything about the electoral materials. Obviously they will be returned but let let let that come through a direction that I'll give the DR >> which will so I'm just saying directions on electro materials will be given to DR to effect.

[00:18:06]Yes. Thank you for reminding me.

[00:18:10]>> Thank you my lord. Um I noticed today the role of the bar saying thank you to the court has been taken up by several people. I think it's what they say that success tends to have fathers but um on behalf of the bank we would like to say thank you for the way the matter has been conducted.

[00:18:41]Um on the end of the petitioner we may not be happy but we are grateful.

[00:18:49]We have been handled, managed, treated with utmost professionalism.

[00:18:57]And I think that no one sitting on this side can take it away from this court.

[00:19:04]And even next time, if there is, we will be more than happy to end up in this court.

[00:19:13]And we also hope that all the issues that we picked up for recommendation that they are going to be acted upon to make um the resolution of electoral disputes um to be enhanced and that is why I wonder [clears throat] looking at the spirit with which we have gone um I I was of the thinking that Mr. Camodo or Dr. Adrian Camovo should be looking forward to a robust appeal process which will actually even make these issues clearer instead of offering an olive branch [laughter] or the petitioner is actually going after the whole tree and its fruits. So we hope that we will be fully facilitated with everything that we have asked for >> and we wish the court all the best going forward and thank you very much.

[00:20:14]>> Thank you very much council. We I take that with a lot of appreciation. I I if you noticed, I started by appreciating and acknowledging you all cuz I didn't know what uh what might happen after I make the final determination and I didn't know whether there is enough security. [laughter] No, thank you very much council. I have also enjoyed myself uh during this this whole exercise and u you say when we do it again. I hope we don't by then. I think I should be an elder doing a alternative justice system next year.

[00:20:54][laughter] [gasps] But thank you very much all. I appreciate you. Have a good afternoon.

[00:21:01]Oh, I have not used my gvel and somebody complained. So let me use it today.

[00:21:07]>> Let me use my gvel because uh it has not been seen to be used. The proceedings are closed.

[00:21:17]Do we stand?

[00:21:23]>> Thank you very much. You must be here most of Yeah.

[00:21:43]Heat.

[00:21:53]Heat up here.

[00:22:33]Heat. Heat.

[00:22:55]Heat.

[00:22:59]Heat.