NASA Petition Outcome; My Take:
A word of caution: This is not for the timid, anyone emotionally attached to one or the other side of this high stakes game to be objective or anyone who doesn't have time to read this small book on Elections 2017 and with that, here we go:
I watched and live-tweeted both the pretrial and 2-day main hearings which was not easy, given there's regular business to do but it was a sacrifice well worth it especially given the record high volume of impressions on Tweeter besides being a record for posterity's sake.
That being said, these are my OBJECTIVE conclusions:
First, NASA has presented enough evidence to nullify the elections under the first prong of Section 83 of the Elections Act of Kenya read together with the relevant parts of the Kenya Constitution (Articles 86, 81, 10, 2 & 1)
Second, it's a toss-up whether the petition can be won under both prongs of Section 83, namely, requiring a show (1) elections were not conducted in accordance with the principles laid down in the Constitution AND (2) that the non-compliance affected the outcome of the elections.
This was the holding in the 2013 Raila petition on what it would take to invalidate elections in Kenya. That holding, however, is not grounded on sound legal jurisprudence to survive being overturned, which is exactly what NASA is asking the Maraga Court to do for this specific issue, namely, what Section 83 requires to invalidate elections.
NASA wants the Court to read Section 83 as having two disjunctive laws (the "or" argument) whereby satisfying either leads to nullification of the elections.
Uhuru and IEBC want the Court to have the two parts read together (the "and" argument)--which is the Mutunga court holding such that NASA has to satisfy both parts to prevail.
As noted above, NASA has presented enough evidence to satisfy the first prong of Section 83.
In other words, NASA has provided enough evidence to show that the presidential election was not done in compliance with the principles of the Constitution which are put to action via the Election Act whose many provisions NASA has shown were either not followed or were intentionally flaunted by IEBC. This showing objectively satisfies the first prong of Article 83.
However, satisfying the second prong of Article 83 is tricky.
What does it take to satisfy this second prong?
NASA did not frontally tackle the question in its case-in-chief, preferring to instead make the case the flaunting of the Constitution and shunning all applicable laws, regulations and policies with respect to recording, transmission and tallying was so shambolic such that the required showing under the second prong of Section 83 is also met on that fact alone.
In other words there's no need to add up the numbers shown to be fraudulent and subtract from Uhuru's currently announced total to determine if they make a difference, i.e., whether they bring the total to less than 50%+1 threshold.
This, NASA argues, is an impossibility because the current total number of votes for Uhuru is based on cooked numbers so its enough to conclude the non-compliance with the Constitution shown is enough to raise an irrebuttable presumption the second prong of Section 83 is also satisfied by the same evidence.
That's not exactly how Senior Counsel Orengo and his co-counsels argued on this point, but it's how any judge keen on the law and justice will see the arguments NASA counsels made in this point.
Which brings me to my third but related observation about this and that is, what role will factors other than law and evidence play or influence the outcome on this petition?
I note above satisfying the second prong in Section 83 is a "toss-up."
The coin is now twerking in the air where it lands face-up is who wins:
Face Up: A majority (4+) of justices who the rule of law means something and are unafraid to give the concept full effect in the application of the law to facts presented as well as to facts they can reasonably infer from those presented.
Face Down: A majority (4+) of justices who the rule of law may or may not mean anything and who are either afraid to impartially and fairly apply the law to facts presented for any number of reasons, including fear of their lives, intimidation or coercion or justices simply compromised the good old fashioned Kenyan way: the Brown Bag.
We certainly hope and pray the coin lands Face-up, if a majority don't overturn Mutunga and hold only one prong of Section 83 need to be satisfied and therefore moot the issue of satisfying the second prong.
As to the issue of overturning the legally unsound Mutunga holding, there's some good news for NASA and that is, as they aptly and effectively reminded the Court, 3 of it 7 judges have already spoken on the underlying issue when they were sitting as judges before being elevelated to the Supreme Court, namely, when can a Court invalidate elections and all 3 justices took the the same position NASA is requesting the Court to take.
If these 3 justices remain intellectually honest and faithful to their prior reasoning, then all they need to do is convince one more justice to join them in reversing Mutunga. Two of the justices I personally know since before they joined the Court although no further communication with one since being appointed.
To be sure, neither of them is my fellow Kisii and fellow Seventh Day Adventist Chief Justice Maraga but I do know people who know him one for a very long time.
In fact, there's no SC justice I don't know personally or don't know someone who knows them personally.
That being said, we have an understanding which I understand and respect with respect to the one I occasionally communicate with not to discuss any active case and we don't.
That doesn't mean they don't read things I say in my Star column, or post here or on my blog.
That being said, if the 3 justices remain intellectually honest to their prior reasoning, then we see them easily convincing either or both Justice Smokin Wanjala and Justice Mohamed Ibrahim.
Doing so will also mean NASA wins its petition on a 4-3 or 5-2 margin of victory.
Based on what I know, the two justices almost guaranteed to be on the Face-Down line-up I discuss above are Justices Njoki Ngung'u and Jackton Ojwang both for reasons we know some of which are discussed or mentioned elsewhere but no need to regurgitate here other than to say it will be pleasantly surprising were that not the case.
However, as I previously blogged, it would be acceptable having a divided court (4-3 or 5-4) rule in favor of granting NASA petition than having a divided court along the same margins or some combination denying the petition.
If the latter, expect nothing short of a revolution or even greater efforts to secede than would be otherwise.
On the other hand, if the decision is 7-0 to grant NASA's petition , then we know Kenya has finally attained true judicial independence and political maturity guided by ideals of jurisprudential doctrines, principles of fundamental fairness and equality topped off with simple common sense and humanity.
The opposite will be true, were the converse to be the case difference being I don't see as much clamor to go big on mass mobilization as would be the case were the decision to deny given by a divided court.
Last but not least, there's something that happened yesterday that should not be overlooked in its significance and, that is, IEBC's deliberate non-compliance with the Court order to allow NASA access to their servers.
There's no question IEBC's refusal to grant access completely for more than 10 hours and only partially granting access when they did all this was an effort to hide their thievery and evidence the voting exercise was under the full control of Jubilee and NSA such that what we have is a presidential election truly determined by Vifaranga vya computer.
The reasons IEBC Paul Muite gave as explanations why IEBC did not fully comply were either comical, a damnation of how incompetent IEBC is in allowing outsiders to control access to their own servers and more so people in a foreign country who cannot be bothered in their sleep in times of emergency to do whatever needs to be done or the reasons Muite gave were downright lies.
Orengo hinted in his earlier appearance before the Court he may be filing an application to hold IEBC in contempt of Court but didn't do so when the court resumed late last night.
One can surmise this is because NASA is satisfied the ICT Report by the Court's own experts is enough smoking gun to invalidate the bogus presidential winner announcement by IEBC. Were that not the case, one could count on Orengo screaming bloody-murder about IEBC's non-compliance with the Court order.
Indeed, in such a summation, one would have expected Orengo to brilliantly tie this non-compliance to IEBC's non-compliance with the Constitution and all applicable laws, rules and regulations; in other words, he would have argued, imagine what they did in flaunting the Constitution and laws if they have done this to you, the highest Court of the land!
Unless they did so knowing or assuming there's nothing the Court can do to them.
Let the Court show them there's something they can do, besides holding them in contempt of court, and that's granting NASA's petition.
That's the wild-card gem in what happened yesterday and has received ZERO coverage.
Now you know.
finished accepting congratulations from his peers!
and effectively 
utilised. The Auditor was further unable to express his opinion over financial statements of Sh28 billion due to lack of sufficient and accurate information and explanations. 
since the Land Act, Land Registration Act, National Land Commission Act and Community Land Act took effect, therefore creating a loophole that enables the cartels to subvert the law and take over peoples property with impunity.
result was annuled!? kwani the rest were conducted 
constitutionally!? or it is just that they were not enjoined in the NASA appeal?