The Supreme Court minority ruling has raised critical questions on part of the evidence that was filed in supporting NASA leader Raila Odinga’s petition.
The two dissenting judges, Justice Prof. Jacktone Boma Ojwang and Lady Justice Njoki Ndungu stated that Odinga’s evidence failed to meet the requisite threshold to annul President Uhuru Kenyatta’s August 8 election.
While Ojwang asserted that the evidence submitted to support the petition was vague, Justice Njoki went further and analysed the evidence to the existent of linking it to forgery and falsehoods.
This was especially so on a number of submissions made by Dr. Nyagasi Oduwo through an affidavit in support of Odinga's petition.
Justice Njoki poked holes on a number of statement in Oduwo’s affidavit.
In one instance, she fell short of stating that Dr. Oduwo had committed perjury while submitting evidence that suggested that blank forms 34A were used in the election process.T he Supreme Court judge noted that Oduwo’s claims were false.
"In evidence he (Oduwo) annexed a copy of a blank Form 34 A for Ruai Girls Secondary School polling in Kasarani Constituency…I have found that that blank Form 34A has no probative value in respect of the assertions made in the Petition (in fact I have checked this allegation alongside the certified copy of the particular polling station and found it not to be correct),” Njoki stated in her minority judgement.
Oduwo, who is an economic advisor to Mombasa Governor Ali Hassan Joho, was further accused of misleading the court with regard to his claim that some of the forms 34B from Mombasa did not have security features.
"In the interest of justice, I set out to examine each of forms that had been disputed in Dr Nyangasi Oduwo’s affidavit, Having looked at all the Forms 34A and 34B (290 constituencies, 1 diaspora), I am satisfied that all the Forms met the required threshold in Form and content, the judge stated.
However, neither the majority nor the minority decision called for prosecution of any witness with regard to perjury.