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WHY BREAKAWAY COMMISSIONERS WANT PRESIDENTIAL RESULTS CANCELLED. 

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Independent Electoral and Boundaries Commission (IEBC) breakaway commissioners senior counsel Paul Muite.

BY SAM ALFAN.

Four breakaway commissioners of the electoral body have asked the Supreme Court to nullify the August 9 presidential election stating that they do not agree with the final tally.

The four led by vice chairperson Juliana Cherera told the court that they were not part of the final declaration made by Independent Electoral and Boundaries Commission chairman Wafula Chebukati.

Through senior counsel Paul Muite and Issa Mansur, the dissenting commissioners told the they walked out on Chebukati before the declaration because it was not transparent, verifiable and a credible process.

SC Muite added that the four commissioners added that they walked out after live streaming of the results stopped.

It is their claim that they walked out after being denied an opportunity to peruse and verify the results from 27 constituencies that the winning candidate and reached the 50 percent plus one vote threshold.

“When that was denied they had no option but to refuse to be party to violation of the Constitution,” Supreme Court heard.

Muite added that Cherera together Justus Nyang’aya, Francis Wanderi and Irene Masit pleaded with Chebukati to resume live streaming of the results but he declined, a move that prompted them to leave the National Tallying Centre in protest.

They claimed that the public display of results was stopped by the chairperson.

The apex Court further heard that the commission continued working as a corporate entity but had serious corporate governance issues.

COURT HEARS THAT PRESIDENTIAL ELECTION PETITIONS FULL OF HEARSAY.

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Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati.

BY SAM ALFAN.

The Independent Electoral and Boundaries Commission (IEBC) and Chairman Wafula Chebukati has urged the Supreme Court to dismiss several petitions challenging William Ruto’s win saying they lack merit.

Through Prof Githu Muigai the commission told the court that the petitions are full of generalities and innuendos, and no evidence of probative value has been laid to support the case.

He said the petitions have made all sorts of allegations including fraud, conspiracy and implied treason without a shred of evidence.

Prof Githu further submited that international observors applauded the process saying it was free, fair and transparent.

“All observers came back with one conclusion, this was an open and transparent election,” he said.

The court heard that since the annulment of the presidential election in 2017, IEBC overhauled its entire electoral structure with the guidelines provided by the court after the nullification of the presidential election.

“The petition before you has absolutely nothing to do with any legal lacuna; it’s about numbers. The petitioners have tried to argue every other point except numbers,” he submitted..

He added, “It is my first submission that the IEBC and its chairman conducted the August 9, 2022 elections strictly in compliance with the law.’

He pointed out that there was a concerted effort to ensure that there was no declaration. “So the sanctimonious self-righteous pompous pontification of the so called four commissioners are an afterthought,” he said.

Prof Githu told the judges that the allegations made by team of lawyers representing the two petitioners are only supported by way of affidavit evidence whose deponent will not be called by the court for cross-examination.

He submitted that there was no evidence produced during their submissions to prove allegations of manipulation , tampering, interference and access to the electoral system by strangers as alleged.

He said some of the senior lawyers have secured positions of Governors, senators and members of Parliament, they have not complained that the process of the election is not free and fair.

On his part Kamau Karori told the bench that allegations being raised by the Petitioners are not supported by way of any evidence.

Karori further told the judges that the commission is cooperate body or entity those working under the commission have their role to play saying the four commissioners who complained not being involved in tallying and verification process were ignorant of the law.

The lawyer further clarified that the counting and tallying start from the constituency,Form 34 A is transmitted in two ways electronically and manually through a respectively returning officer.

On the 27 constituencies which petitioners alleged that they were not tallied and verified the same was done in presence of the four commissioners.

Lawyer Karori told the court that the postponement of election in Kakamega arose as a result of mixup the voting of material which was detected on August 8, 2022 in which the returning office noticed mixup of images .

In Mombasa the lawyer submitted there was ongoing litigation of gubernatorial which wet to the late hours and exercise of election could not go on.

The court was also the four commissioners visited Greece where election material were being printed saying their against the chair is an afterthought.

IEBC DEFENDS PRESIDENTIAL ELECTION.

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Senior Counsel Githu Muigai submitting before Supreme court seven judges.

BY SAM ALFAN.

Senior Counsel Githu Muigai has told the Supreme Court that the personal attacks against the chairperson of the electoral body is a trend exhibited by persons not willing to concede defeat.

Prof Muigai took the court through the history reminding the judges how previous holders of the electoral body were vilified and hounded out of office in a similar manner.

“There is something very wrong in the way the persons who participate in the electoral process accept winning or losing,” Githu submitted.

He dismissed orders seeking the ouster of IEBC chairperson Wafula Chebukati from office saying he cannot be removed from office based on hearsay.

“The constitution itself contains complex processes for the removal of a person. Is he now to be removed by reference to affidavits based on nothing but hearsay?” Githu said.

He submitted that integrity is not numbers and the reason Chebukati whom he called great statesman said, “I protest even if I do so alone. To do the right thing does not require you to be with the majority, it requires you to be with your conscience.” he added.

He said that Chebukati conducted the election within provisions of the constitution and the Petitioners have not pointed out any violations he made.

Chebukati worked within the orders of the supreme court issued in the year 2017 in the case of Maina Kiai in which the court gave IEBC chair sweeping powers to conduct election without interference.

On the allegations, chebukati held himself as the national returning officer for Presidential election, he said it’s provided for under 130 of the election Act.

Lawyer Kamau Karori told the supreme Court that the chairperson and the commissioners present were assaulted and injured to stop the declaration of the results.

WHY ACTIVIST WANTS PRESIDENTIAL ELECTION RESULTS CANCELLED.

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Lawyer Willis Otieno for activist Khalef Khalifa making submissions before Supreme Court.

BY SAM ALFAN.

The people of Kenya had their say but machines had its way. These are the words of activist Khalef Khalifa when took the floor to argue for the nullification of the declaration of William Ruto as the president elect.

Through lawyer Willis Otieno, the activist said that Independent Electoral and Boundaries Commission (IEBC) system was compromised even before the election were conducted on August 9.

The lawyer said IEBC’s register had 481,711 persons that had been duplicated a pointer to the fact that the election was already compromised.

“The audit report shows that 638,814 null IDs registered. This could and did affect the results,” said lawyer Otieno.

He told the supreme court that there was lack of transparency in the tallying and verification of the results, contrary to constitution, a move that completely erodes public confidence in the election.

“We cannot focus on the numbers because the process through which those numbers are being arrived at has been compromised,” said Otiono.

He added that all IEBC commissioners should have been involved in tallying and verification of votes for the Presidential election.

He further submited that IEBC Chairman Wafula Chebukati contradicted himself by first claiming that he was solely responsible for tallying and verification of the presidential results but later said in court that the process was handled by the entire commission.

“The law says that all IEBC commissioners should take part in the process. The power of tallying and verification of results cannot be vested in an individual,” he said.

Lawyer Paul Nyamondi for Youth Advocacy Africa, an NGO said there’s no such position as the ‘returning officer of the presidential election’, and the post was a creation of the chairperson Chebukati.

“There is no such position such as the returning officer of the presidential election,” said Nyamondi.

He submitted that Chebukati’s creation of the position of RO of the Presidential election allowed him to tally and verify presidential election results in a manner contrary to the Constitution, which vests power in the entire electoral commission.

He submitted that It’s admitted that Chebukati excluded other commissioners in tallying and verifying presidential election results adding that tallying and verification of presidential results was exclusively done by Prof. Abdi Guliye, Marjan Hussein Marjan and IEBC Chairman. Not by the IEBC.

He further told Supreme court that IEBC chairman Wafula Chebukati gazetted himself without a deputy Returning officer.

“Returning officers are gazetted with deputies. The IEBC Chairman Wafula Chebukati appointed himself as returning officer of the Presidential election with no deputy,” he submitted.

Lawyer Nyamondi said It is impossible to tell whether the returned candidate garnered 50%+1 because the process by which that finding would have been made did not happen constitutionally.

Lawyer Nyamondi added that move by Chebukati to deploy of commissioners at the National Tallying Centre at the Bomas of Kenya was not accidental. “The chairman of IEBC has dealt with election timelines as though they are elastic,” added Nyamondi.

According to lawyer Nyamondi, appointment of the IEBC CEO Hussein Marjan to assist in tallying of presidential results was unlawfully.

KENYAN WANTED OVER WILDLIFE AND DRUG TRAFFICKING TO BE EXTRADITED TO THE US TO FACE CHARGES.

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BY SAM ALFAN.

A Kenyan wanted in the US over wildlife and drug trafficking will be extradited following a directive of a Nairobi court.

Abdi Hussein Ahmed will be taken to the US to face charges following an application by the Director of Public Prosecution Noordin Haji after his arrest early this month.

Nairobi Court Chief magistrate Roseline Oganyo issued an extradition order after Haji said the US authorities sought the surrender of the fugitive.

“I hereby issue order for extradition and surrender of the respondent Abdi Hussein Ahmed a.k.a “Abu Khadi” from the republic of Kenya to the United States of America,” ordered the magistrate.

Haji through Senior Assistant DPP Catherine Mwaniki told the court that the request from US was made long ago but the suspect has been on the run.

Mwaniki, who is on transfer to head the office of DPP in Nyanza Region, told the court that Ahmed was arrested in an early morning raid in Maua, Meru County, where he was staying in a rented room.

“His accomplice Badru Abdul Aziz Saleh was in May this year arrested as he tried to flee to Somalia and was brought to Nairobi before he was extradited to the USA,”said Mwaniki.

The US authorities offered a bounty of US $2 million in April 26, 2022 (Sh233 million) for the arrest of both suspects.

Ahmed and Aziz are accused of being part of an international organised criminal network that trafficked wildlife and sought to traffic illicit drugs to the United States.

They are accused of conspiring to smuggle at least 190 kilograms of rhino horns and 10 tonnes of ivory.

It is said that the rhino horns and ivory were valued at $7 million (Sh800m).

The US government indicated in the request that the two are major violators of US narcotics and wildlife trafficking laws and are wanted for their alleged involvement in an international organized criminal network that trafficked wildlife from Africa and sought to traffic illicit drugs to the United States.

The US request says that eradicating drug and wildlife trafficking are priorities of the Biden Administration, they are happy for the continued partnership of the Kenya Government to capture and arrest members of these criminal networks.”

“On JS.une 14, 2019, the United States Southern District Court of New York indicted the three individuals. Interpol issued a red notice with respect to the said suspects, Sahul Mansur Mohamed and Ahmed Abdi Hussein, while a warrant of arrest was issued in respect to Saleh Badul,” Kinoti said.

He was part of an “international conspiracy” responsible for the slaughter of more than 100 elephants and dozens of rhinos, federal prosecutors in New York said.

It allegedly amounts to an estimated $7.4m amassed over seven years.

ATTORNEY MWANIKI MOVED TO NYAZA IN NEW APPOINTMENT.

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Senior Assistant of Director of Public Prosecution Catherine Mwaniki. /PHOTO BY S.A.N.

BY SAM ALFAN.

Senior Assistant of Director of Public Prosecution Catherine Mwaniki has been appointed to head the prosecution’s office in Nyanza region.

Director of Public Prosecution Noordin Haji directed Mwaniki to report to her new station on September 1, 2022 after handing over to the incoming Head of International Cooperation Division.

According to the appointment letter dated August 3, 2022 and signed by DPP Haji, Mwaniki will coordinate and supervise administrative as well as prosecution services in the Nyanza Region in the counties of Kisumu, Migori, Kisii, Nyamira, Siaya and Homa Bay.

“This is to inform you that you have been appointed as the Head, office of Director of Public Prosecution , Nyaza region with effect from September 1, 2022,” reads the appointment letter.

Prior to her transfer, Mwaniki has been handling high profile cases, among them murder and extradition proceedings at the Milimani law courts.

BREAKAWAY IEBC COMMISSIONERS INSIST THAT RESULTS DECLARED BY CHEBUKATI ARE VOID.

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Senior Counsel Paul Muite for four Independent Electoral and Boundaries Commission (IEBC) submitting before Supreme court during hearing of presidential election petition.

BY SAM ALFAN.

Four breakaway commissioners of the Independent Electoral and Boundaries Commission (IEBC) have insisted that they represent the official position of the electoral body.

Vice chairperson Juliana Cherera, Justus Nyang’aya, Francis Wanderi and Irene Masit said their position as the commission is that the results declared on August 15 by Wafula Chebukati are illegal.

The four submitted through Senior Counsel Paul Muite and Issa Mansur urged the court that being the majority of the commission members, their position stands.

SC Muite told Supreme Court judges that it wasn’t true as claimed by Chebukati that the called for a Raila Odinga win or force a re-run.

They said they were not involved in the tallying and verification of the presidential results as required by law as the chairman took over the role by himself.

“The commissioners were not involved in the tallying and verification and in particular regarding the 27 constituencies.”-SC Muite told the supreme court.

SC Muite added that Chebukati appointed himself the presidential returning officer and the results declared were unconstitutional.

Lawyer Mansur submitted that the position of the four commissioners was to deliver a free and fair election.

“In their quest to do what is right, there were problems like a lack of transparency,” he added.

Lawyer Mansur added that here was a lack of transparency and the four commissioners who are being vilified are expected to stand behind the chairman and confirm that a person has been declared the President without following due process.

He submitted that there was lack of transparency in the process as Chebukati made all the decisions.

Lawyer Mansur further questioned why was IEBC Chairman Wafula Chebukati in a hurry to announce the presidential election results when he had one more day to complete the work?

In his submissions, lawyer Jeremy Njenga told the court that the four commissioners walked out of Bomas of Kenya because they did not want to give legitimacy to a process they were not involved in.

Lawyer Gordon Ogola added his voice saying that Chebukati excluded the other commissioners in the verification of the presidential results.

He submitted that the side-lining of commissioner Masit and others did not start at Bomas, but from when they were re-assigned duties.

Njenga told the court that the presidential election results announced by Chebukati were not legitimate.

He added that the four commissioners eft the national tallying centre at Bomas because they were out to protect the Constitution.

According to lawyer Ogola, during the declaration of the presidential results, the four IEBC commissioners were only given handwritten pieces of paper containing results to announce.

TRANSITION COMMITTEE STOPPED FROM INTERFERING WITH AFFAIRS OF METHODIST CHURCH.

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Revered Joseph Ntombura with his lawyer Danstan Omari (center) and Kenya Methodist University (KEMU) Deputy Vice Chancellor Dr. Mary Kinoti addressing journalists at Methodist Resort and Conference Center./PHOTO BY IRENE ONYANGO.

BY SAM ALFAN.

The High Court has barred 17 members of Methodist Church of Kenya from interfering with the running of affairs of the church, pending the resolution a dispute lodged by Rev Joseph Ntombura.

Commercial court Principal Magistrate S. Opande stopped the 17, their agents and affiliates from conducting an ad hoc committee scheduled for August 30.

The application was made by Rev Ntombura and Trustees of the church.

The court further ordered the status quo prevailing at the Methodist Church, be maintained.

The Trustees and Rev Ntombura through lawyer Danstan Omari filed the case seeking to bar the transition connexional ad hoc committee (TCAC) from interfering with the affairs of the church.

The trustees sued Mishack Kanake, Jacob Gituma, Dr. Kobi Ataya, Jeremiah Adondo, Emmanuel Maingi ,Hellen Kamenchu, William Kilonzo, James Muriuki , Gladys Mwiti among others their associates and affiliate from conducting the meeting as planned.

They further urged the court to restrain the said members, agents , associates and hired goons at their disposal from illegal forceful occupation of conference room.

The church and Rev. Ntombura further sought orders that the group and their associates restrained from inciting other members of Methodist church in Kenya for their personal gains.

Rev. Ntombura urged the court to stop the group from damaging Methodist Church property or causing bodly harm to him or any other member of Methodist church.

“An order be issued restraining respondents , agents or associates from causing disturbance , nuisance, terrorizing and disrupting workflow in the church office, our tenants and the business taking place in the premises pending hearing and determination of the petition,” pleaded Rev. Ntombura.

He urged the court to declare that the resolution of the extraordinary Methodist members meeting on August 21.

ELECTION BODY OFFICIAL DISMISSES CLAIMS OF ALTERATIONS OF FORMS 34A.

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Independent Electoral and Boundaries Commission(IEBC) Chairman Wafula Chebukati.

BY SAM ALFAN.

An Independent Electoral and Boundaries Commission (IEBC) database base administrator has dismissed claims of alterations and interference of forms that were uploaded at the electoral body portal

Martin Nyaga said in affidavit that the claims are unfounded because the transmission of scanned image in pdf format from from the time captured by the presiding officer or storage of the forms in IEBC portal cannot alter the content of the form.

He dismissed allegations contained by Benard Adongo who is supporting the petition by Raila Odinga seeking to overturn president elect William Ruto’s victory at the Supreme Court.

Nyaga says that Adongo’s affidavit is mischievous, unmerited, substantively deficient and based on unfounded and unsubstantiated allegations and amount to misuse of legal process.

He adds that Form 34As transmitted on the portal were never interfered at any instance and for avoidance of doubt, the Form 34A relied on by the commission to tally, verify and declare the presidential results were the physical original Form 34A from the presiding officers.

He explained that the forms were physically brought to the National Tallying center and formed the basis of final tally after verification of the presidential results.

“The allegations flatly fails lack on substantiation and proof by evidence and the whole affidavit is coached and drawn fatally defective and should be disregarded,” says Nyaga.

He alleged that Adondo has been coached based on imaginary and unverified allegations with an aim to taint the electoral process conducted by IEBC which received overwhelming credence , thumbing and approval globally and same should not be entertained as it is a misuse of judicial time.

Nyaga adds that the alleged fraud and malpractices by the electoral body are unsubstantiated and denied. He confirms that all forms are digitally signed and key metadata can been seen in digital signature which provides for the KIEMS Kit used, date and time when the form was created.

In his replying affidavit, he further dismisses Adongo allegations that forms did not contain details on key descriptive metadata saying it is striking inconsistency and contradiction shows Raila’s sole purpose is to mislead Supreme Court.

He adds that the alleged time differential between creation and modification is imaginary, fake and false as the forms were modified.

“I confirm there was no conversion from jpeg to pdf format. The KIEMS Kit software was designed to take a scanned image in pdf format. The forms have digital signature that indicate they have not been modified,” says Nyaga.

He further reiterate that the allegations of time interval from creation to modification from a few minutes to five minutes are unfounded, baseless , callous and merely meant to mislead the court.

According to Nyaga, the alleged peculiar unusual on the forms are unfounded. He confirmed that the transmission of scanned image in pdf format from from the time captured by the presiding officer or storage of the forms in IEBC portal cannot alter the content of the form.

SH.400 MILLION BELONGING TO NIGERIAN FIRM FROZEN OVER ALLEGED CARD FRAUD.

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Milimani Law Courts Building./PHOTO BY S.A.N.

BY SAM ALFAN.

The High Court has frozen more than Sh400 million belonging to Nigerian firm Flutterwave Payment Technology Ltd and two other companies over links to card fraud.

Justice Grace Nzioka froze allowed the freezing of the Sh400.6 million belonging to Flutterwave, Hupesi Solutions and Adguru Technology Ltd, pending application by Assets Recovery Agency (ARA).

ARA said in the application that the money in United Bank of Africa, Access Bank and several Safaricom Paybill numbers are conduits of money laundering, in the guise of providing merchant services.

The agency says it conducted investigations and established that the bank accounts received millions of shillings whose source is suspected to be money laundering and card fraud.

Vacation Judge Nzioka barred the companies from withdrawing, transferring of dealing with the money, pending ARA’s probe. She directed ARA to serve the companies with the court documents ahead of the mention of the case on November 21.

“That unless the honourable court grants the orders sought in this application, the funds in the bank account may be transferred or spent rendering the application nugatory,” ARA said in the petition.

ARA says debits amounting to Sh136 million, which included chargebacks, reversals and refunds an indication of card fraud. Another account would be used to convert dollars into shillings, in a scheme of layering and intermingling.

The amounts frozen include Sh110 million in UBA account, another US $ 556,622 (Sh66.7 million), Sh29.1 million in Access Bank and Sh68 million, Sh112 million and Sh14.5 million in a total of 19 Safaricom Paybill numbers.

“A preservation order be and is hereby issued prohibiting 1st respondent ( Flutterwave Payment Technology Ltd) or his agents or representative from transacting, withdrawing, transferring ,using any other dealings in respect to Sh 29,123,339.25 held in account at Access Bank,” ruled Justice Nzioka.

The agency investigating officer corporal Isaack Nakitare told the Anti-corruption court that the investigation reviewed that Flutterwave Payment Technology Ltd account held at UBA bank and a closing balance of Sh 110,182,608.99 when the agency obtained the warrant to investigate.

According to his analysis the bank account received Sh 246,307,037.47 from December 7th 2017 to July 7th 2022 as credits.

He told the court that out of the total credit of Sh 246,307,037.47 first three large transactions amounting to Sh 231,240,500 are from their USD account to Kenya shillings account pointing into a scheme of layering and intermingling the funds.

He further added that his investigations revealed that the bank account had received total credits of USD 35,233,028.52. He further stated that at the time of obtaining freezing orders,the bank account had a balance of USD 556 803.98.

The above were mostly card transactions some of which with repeated card transaction code,an indication of card fraud.

The court also heard that there were several chargeback and refund/ reversal transactions amounting to USD 1,020,302.41.

“These were 1424 transactions out of a total of 1796 debit transactions which demonstrates a case of card fraud,” the investigator stated.

Some of the recipients of the funds include Bloompoint tech platforms, Flutterwaves settlement, Flutterwaves payment tech solutions, Flutterwaves inc, Remx Ltd among others.