REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA AT NAIROBI
ELECTION PETITION NO. 4 OF 2017
NJONJO MUE……………..…………………………………………1ST PETITIONER
KHELEF KHALIFA…………………………..……………………..2ND PETITIONER
THE CHAIRPERSON OF INDEPENDENT
ELECTORAL AND BOUNDARIES COMMISSION…….……1ST RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION………………………………….2ND RESPONDENT
H. E. UHURU MUIGAI KENYATTA……..….…………….…..3RD RESPONDENT
NATIONAL SUPER ALLIANCE COALITION (NASA) ……..4TH RESPONDENT
THE 4TH RESPONDENT’S REPLYING AFFIDAVIT TO THE PETITION DATED
6TH NOVEMBER, 2017
I, HON. MUSALIA MUDAVADI of Post Office Box Number 10311-00100 Nairobi
do make oath and state as follows:
1. THAT I am a Kenyan Citizen, voter and adult of sound mind, residing and
working for gain in the Republic of Kenya and was at all material times the
party leader of the Amani National Congress (ANC), a member of the National
Super Alliance (NASA) coalition and the Head of the presidential Campaign
of the 4th Respondent herein. I am therefore competent to swear this Affidavit
on behalf of NASA and I am well versed with the facts and circumstances
2. THAT I have read and had the same explained to me by the 4th Respondent’s
Counsel on record the contents of the Petition herein together with the
Affidavits sworn in support thereof and the annexures therewith and I do
wish to respond as hereunder:
3. THAT save as otherwise expressly stated herein, the contents of this affidavit
are based on my personal knowledge acquired in my abovementioned
capacity and are true. To extent that any matter in this affidavit is based on
information and/or belief, I have disclosed the source and/or ground (as the
case may be) of the same, and verily believe the same to be true.
4. THAT the 4th Respondent supports the Petition save for the generalized and
specific averments levelled against it, which the 4th Respondent denies in
5. THAT the 4th Respondent nominated Hon. Raila Amollo Odinga (a nominee
of Orange Democratic Movement) and Hon. Steven Kalonzo Musyoka (a
nominee of Wiper Democratic Movement) as it’s presidential and deputy
presidential candidate respectively to contest for the presidential election
seat in the general elections held on 8th August, 2017.
6. THAT on 11th August, 2017; the 1st Respondent herein declared the 3rd
Respondent as the winner and the president elect.
7. THAT the 4th Respondent through it’s presidential candidate successfully
challenged the presidential elections conducted on 8th August, 2017 in
SUPREME COURT PRESIDENTIAL ELECTION PETITION NO.1 OF 2017:
RAILA ODINGA & ANOTHER –VERSUS- INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION & OTHERS.
8. THAT On 1st September, 2017 this Honourable court rendered it’s
judgement invalidating the presidential elections conducted on 8th August,
2017; for reasons, among others that the elections were not conducted in
accordance with the Constitution and the relevant electoral laws and that
the 2nd Respondent had committed electoral illegalities. This court ordered
fresh presidential elections to be conducted within 60 days from the date of
THAT immediately thereafter, the 1st Respondent issued a press statement
requesting, among other things, the Director of Public Prosecution to
commence investigations and prosecutions of any officers/members of the
2nd Respondent who has committed election offences. To date, no
prosecutions or investigations have been lodged against any of the said
members. (annexed herein and marked as “MM1” is an online edition
of the standard newspaper of 1st September, 2017 and other media
reports in support of the foregoing)
10. THAT the 1st Respondent reiterated his calls for investigation thirty days
later and similarly no prosecution/investigation has been launched.
(annexed herein and marked as “MM2” is an online edition of the Daily
Nation Newspaper of 3rd November, 2017 and other media reports in
support of the foregoing)
11. THAT the 4th Respondent, through one of its Advocates, A.T Oluoch, also
wrote to the Director of Public Prosecution and demanded an investigation
and prosecution of the officials of the 2nd Respondent. (annexed herein and
marked as “MM3” is a letter dated 22nd September, 2017 by AT Oluoch
12. THAT the Director of Public Prosecutions thereafter responded and directed
the Director of Criminal Investigations and the Secretary of the Ethics and
Anti-Corruption Commission to conduct investigations within 21 days with
the intent to prefer charges where necessary. (annexed herein and marked
as “MM4” is a letter dated 23rd September, 2017 by the Director of
13. THAT similarly, no action has ever been taken so far.
14. THAT the 4th Respondent believes that all the officers of the 2nd Respondent
who had committed illegalities on 8th August, 2017 elections remained in the
employ of the 2nd Respondent and prepared and presided over the fresh
elections on 26th October, 2017.
15. THAT I verily believe that the 2nd Respondent failed to support and
deliberately frustrated all efforts made by the 1st Respondent to make the 2nd
Respondent and its officers accountable for the illegalities and irregularities
committed on the 8th August, 2017.
16. THAT another example of the aforesaid frustration and sabotage of the 1st
Respondent’s efforts was seen after the 1st Respondent issued a memo on
the 5th September, 2017 to the CEO of the 1st Respondent, Ezra Chiloba.
(annexed herein and marked as “MM5” is a copy of the Memo issued
by the 1st Respondent herein).
17. THAT in the said Memo, the 1st Respondent named some officers namely
James Muhati, Paul Mugo and Boniface Wamae, for committing election
offences by creating unauthorised accounts in the name of the 1st
18. THAT in the said Memo, the 1st Respondent principally accused the CEO of
the 2nd Respondent, Ezra Chiloba, of causing the illegalities and
irregularities that occurred in the election of 8th August, 2017; contradicting
the position of the 2nd Respondent on the same; and downplaying the
concerns of the Supreme Court.
19. THAT subsequent thereto, fellow commissioners of the 1st Respondent
disowned the Memo and stated that the Memo does not reflect the position
of all the members of the 2nd Respondent. (annexed herein and marked as
“MM6” is a copy of the Memo and a tweet issued by the commissioners
namely Consolata Nkatha Maina, Prof. Yako Guliye, Amb. Paul Kurgat
and Boya Molu and Margret Mwachanya disowning the Memo by the
20. THAT further subsequent to the disownment by other Commissioners of the
2nd Respondent, the 2nd Respondent rounded up all its officers and
commissioners to a retreat at Naivasha that was meant to address the
issues. In a press release dated 11th September, 2017 issued after the said
retreat, the 1st Respondent abandoned his attempts at making the 2nd
Respondent and his officers accountable and explained away the illegalities
and irregularities as implementation challenges. The 1st Respondent in fact
confirmed the CEO, Ezra Chiloba, who he had previously held responsible
for the illegalities and irregularities, as the person to take full charge of thepreparation for the intended new elections. (annexed herein and marked
as “MM7” is a copy of the Press Statement dated 11th September, 2017
and issued after the Naivasha retreat by the 1st Respondent).
21. THAT despite the 1st Respondent’s full knowledge that the 2nd Respondent
had refused to address the illegalities and irregularities observed by the
Supreme court in its decision, the 1st Respondent scheduled for the conduct
of a new poll on 17th October, 2017. (annexed herein and marked as
“MM8” is a copy of the Gazette Notice No.8751 of 2017 scheduling the
date for 17th October, 2017)
22. THAT in settling for 17th October, 2017 as the date for the new poll, I verily
believe that the 1st Respondent took his hue from the acting Cabinet
Secretary for Education Hon. Fred Matiangi who had publicly suggested to
him that the election date should be before 17th October, 2017. (annexed
herein and marked as “MM9” is a copy of the newspaper cutting and
video clip by Fred Matiangi.)
23. THAT 4th Respondent protested against the date as it cut off critical time
that the 2nd Respondent needed if it were to deliver a credible election.
24. THAT surprisingly, it is the 3rd Respondent and his agents who put up a
defence of the 1st Respondents decision. (annexed herein and marked as
“MM10” is a news item by an online newspaper Kenyans.co.ke. in
support of the foregoing)
25. THAT the 4th Respondent was concerned that the 2nd Respondent was
proceeding with a new election without addressing the illegalities and
irregularities and on 12th September, 2017 the 4th Respondent issued a
position paper calling for reforms of the electoral process which was termed
as ‘irreducible minimum before fresh elections are held’. (annexed herein
and marked as “MM11” is the 4th Respondents’ position paper on
26. THAT the 1st Respondent reacted to the 4th Respondent’s position paper vide
a letter dated 10th October, 2017 addressed to the 4th Respondent. In it’s
response, the 1st Respondent brushed off the concerns of the 4th Respondent,
and in effect reiterated that the 2nd Respondent would conduct the new elections in the same way it had conducted elections on 8th August, 2017.
(annexed herein and marked as “MM12” is the letter dated 12th
October, 2017 from the 1st and 2nd Respondents)
27. THAT despite OT Morpho advising the 1st and 2nd Respondent that they
could not reconfigure the KIEMS kit before 1st November, 2017; the 1st and
2nd Respondent rescheduled and held polls on 26th October, 2017. (annexed
herein and marked as “MM13” are media reports in support of the
28. THAT the 1st Respondent thereafter changed the scheduled election date
from 17th October, 2017 to 26th October, 2017. (annexed herein and
marked as “MM14” is a copy of the Gazette Notice No.9800 a
corrigenda issued on 29th September, 2017 changing the scheduled
election poll from 17th October to 26th October, 2017)
29. THAT while all this fiasco was going on, the 3rd Respondent was executing
an elaborate systematic policy to ensure that the fresh presidential elections
would not be conducted in a free, fair and credible manner.
30. THAT throughout the period from the 8th day of August, 2017 the 3rd
Respondent and his agents deployed violence, intimidation, improper
influence and corruption on the Kenyan populace especially those perceived
to be supporters of the 4th Respondent.
31. THAT on the 1st September, 2017 while addressing a public gathering at
Burma market, the 3rd Respondent issued insults against judges of the
Supreme court of Kenya who had voted to annul the 8th August, 2017 and
stated that the Judges who annulled the elections cannot decide who will be
president in Kenya and further stated that when the election issue was over
he would deal with them. In addition, he said that after the campaign he
would sort out those judges. (annexed herein and marked as “MM15” are
video clip of the 3rd Respondent addressing his supporters at Burma
market in support of the foregoing)
32. THAT in the aforesaid address, the 3rd Respondent personally castigated the
Chief Justice and said that Chief Justice and his fellow thugs had in
annulling the 8th August 2017 elections overturned the will of the Kenyan
people and said that the Chief Justice should know that he was dealing with
a president in full charge who was ready to deal with his enemies.
33. THAT 2nd September, 2017 while meeting newly elected representatives of
the Jubilee party, the 3rd Respondent continued with his threats against
judges of the Supreme Court and reiterated that he would deal with them
saying that he will revisit the issue of the election petition. (annexed herein
and marked as “MM16” are video clip of the 3rd Respondent
addressing his Governors and MCA at State House in support of the
34. THAT prior to issuing threats against the Judiciary, the 3rd Respondent had
unleashed a reign of terror against members and supporters of the 4th
Respondent beginning 8th August, 2017.
35. THAT various reports done by independent human rights groups have
detailed how the National Police Service deliberately targeted members and
supporters of the 4th Respondents and subjected them to extra judicial
killing, maiming, rape and destruction of property. (annexed herein and
marked as “MM17” are reports from:
a) Kenya National Human Rights Commission titled ‘Mirage at dusk’.
b) Report by Amnesty International titled ‘Kill those criminals-
security forces violations in Kenya’s August 2017 elections’
c) Two reports by Elections Observations Groups (ELOG) titled ‘ELOG
Statement on the prevailing electoral environment’ and ELOG
Statement on the 26th October 2017 fresh presidential elections’.
d) Report by Independent Medical Legal Unit (IMLU) titled ‘Press
statement on public order management in the August and October
2017 general elections’.
36. THAT further in the period after 8th August, 2017, there was widespread and
unprecedented deployment of National Police Service Officers in the various
areas perceived to be the strongholds of the 4th Respondent. (annexed herein and marked as “MM18” are video clips showing police
deployment in Migori.)
37. THAT I verily believe that the purpose of this reign of terror was to intimidate
members and supporters of the 4th Respondent and discourage them from
fighting for electoral justice and from participating in the repeat elections
ordered by this Honourable court.
38. THAT to further support the National Police Service in establishing a reign
of terror, the 3rd respondent and his agents contracted the use of militia
styling itself as the ‘Nairobi Business Community’, which I verily believe was
a sanitized tag for the former mungiki organization, a terrorist group.
39. THAT my belief is based on the fact that the acting Cabinet Secretary in
charge of interior coordination and national government, Hon. Fred
Matiangi, had in the presence of the 3rd Respondent instructed members of
the Chinkororo terrorist group in Kisii and Nyamira counties to attack
members and supporters of the 4th Respondent. (annexed herein and
marked as “MM19” are video clips of Hon. Fred Matiangi; a translation
of the speech by Hon. Fred Matiangi; and Gazette notice No.12585
outlawing both Chinkororo and Mungiki)
40. THAT further, an organisation of women supporters of the 3rd Respondent
styling themselves as the ‘Jubilee Womens Brigade’ started holding
gatherings in various parts of the Republic of Kenya during which they
adopted military mannerisms eg salutes and engaged in the taking of public
pledges to ensure an electoral victory for the 3rd Respondent. (annexed
herein and marked as “MM20” are videos of the said Womens Brigade
at Kasarani on 23rd October, 2017 and Mombasa on 3rd October, 2017).
41. THAT during these meetings of the Jubilee womens brigade, agents of the
3rd Respondent administered oaths on women committing them to ensure
that the 3rd Respondent was declared president after the polling on 26th
42. THAT the 3rd Respondent and his agents including the police embarked on
the violent break-up of the 4th Respondent’s gatherings and meetings and
through the acting Cabinet Secretary for Interior Coordination, one Mr. Fred Matiangi, issued a ban on the peaceful assemblies and gatherings of the 4th
Respondent. (annexed herein and marked as “MM21” is a statement by
the said Fred Matiangi dated 12th October, 2017).
43. THAT the 3rd Respondent through the acting Cabinet Secretary for the
Ministry for Interior Coordination and National Government, Dr. Fred
Matiangi, withdrew the police officers providing security for Honourable
Raila Amolo Odinga and Honourable Kalonzo Musyoka. (annexed herein
and marked as “MM22” is a video clip Fred Matiangi dated 27th
44. THAT the reasons given for the withdrawal was that the two leaders were
holding press conferences and holding political rallies which is a central
activity in an election process.
45. THAT as a result, the said Hon. Raila Amolo Odinga and Hon. Kalonzo
Musyoka could not engage in campaigns freely and extensively as their
security was compromised.
46. THAT the 3rd Respondent also employed improper influence and corruption
to sway persons who had voted for the 4th Respondents’ candidate into
supporting the 3rd Respondent in the poll of 26th October, 2017. The methods
used in swaying the supporters of the 4th Respondent included the
mobilization of public officers in political campaigns and the use of state
resources and premises particularly the Statehouses of Nairobi and Nakuru;
and the use of public school buses to transport delegations from their
destinations to the said State Houses. (annexed herein and marked as
“MM23” are video clips of a) Akamba delegation State House Nairobi
b) Bukusu delegation State House Nairobi c) Abagusii delegation at
State House Nakuru d) Maa delegation at state house Nairobi e) Kuria
delegation at statehouse Nairobi f) Kajiado delegation at State House
Nairobi showing their visits to Statehouses).
47. THAT the 3rd Respondent also engaged in corrupt enticement of politicians
who are members of the 3rd Respondent in order to sway them to shift their
loyalty from the 4th Respondent to the 3rd Respondent.
THAT my belief that the enticement was corrupt is based on the statements
made by the 3rd Respondent at a Rally in Meru where he intimated that he
had obtained the support of one Peter Munya by an agreement to offer him
a job in his government as a reward for changing his allegiance from the 4th
Respondent. (annexed herein and marked as “MM24” is a Video clip in
support of the foregoing).
49. THAT some of the politicians who were enticed by the 3rd Respondent to shift
allegiance from the 4th Respondent are Moses Akaranga from Vihiga County,
Alfred Khangati from Bungoma county, Isaac Ruto from Bomet County,
Hassan Omar from Mombasa County, Dr. David Nkedianye from Kajiado
County, Joseph Tiampati from Narok County. (annexed herein and
marked as “MM25” are newspaper cuttings and video clips in support
of the foregoing).
50. THAT on 10th October, 2017 after evaluating the atmosphere of violence and
intimidation that had been created by the 3rd Respondent, and the failure of
the 1st and 2nd Respondent to meaningfully engage and implement reforms
and changes the 4th Respondents had suggested aimed at creating a level
playing field for all the Presidential candidates, the 4th Respondent resolved
to withdraw its candidate from the presidential race and on that day
Honourable Raila Amolo Odinga and Honourable Kalonzo Musyoka wrote to
the 1st and 2nd Respondent notifying them of their abandonment of their
presidential quest in the 26th October, 2017 elections. (annexed herein and
marked as “MM26” are the letter, statement and video clips in support
of the foregoing).
51. THAT after initially acknowledging that the 4th Respondent’s candidate had
withdrawn from the race, the 2nd Respondent changed its mind and insisted
that the said Hon. Raila Odinga and Hon. Kalonzo Musyoka were still in the
presidential race. (annexed herein and marked as “MM27” is a
statement of preparedness by the 2nd Respondent bearing the said
52. THAT following the change of position by the 2nd Respondent, at least three
legal proceedings were filed against Hon. Raila Odinga and Hon. Kalonzo
Musyoka in an attempt to force their candidature in the said poll. (annexed herein and marked as “MM28” are legal proceedings in NRB PETITION
NO.490 OF 2017: DAVID PKOSING VERSUS NASA & OTHERS; contempt
application in PRESIDENTIAL PETITITION NO.1 OF 2017 among
53. THAT in response thereto, the 4th Respondent commenced a series of voter
education drives to inform its supporters that its candidates were not part
of any exercise to be conducted on 26th October, 2017.
54. THAT subsequently, Dr. Roselyne Akombo one of the commissioners of the
2nd Respondent resigned from the commission on 17th October, 2017.
55. THAT in the Press Statement issued by Dr. Roselyne Akombe on 17th
October, 2017 while in New York, the said Commissioner confessed to the
external and internal influences under which the 2nd Respondent was
cooperating. She stated as follows:
“It has become increasingly difficult to continue attending
plenary meetings where Commissioners come ready to vote along
partisan lines and not to discuss the merit of issues before them.
It has become increasingly difficult to appear on television to
defend positions I disagree with in the name of collective
responsibility. I have concluded that I am no longer making any
significant contribution to the Commission and to my country as
We need the Commission to be courageous and speak out, that this
election as planned cannot meet the basic expectations of a
CREDIBLE election. Not when the staff are getting last minute
instructions on changes in technology and electronic transmission
of results. Not when in parts of the country, training of presiding
officers is being rushed for fear of attacks from protestors. Not
when Commissioners and staff are intimidated by political actors
and protestors and fear for interests. Not when senior Secretariat
staff and Commissioners are serving partisan political interests.
Not when the Commission is saddled with endless legal cases in
the courts, and losing most of them. Not when legal advice is
skewed to fit partisan political interests. The Commission in its
current state can surely not guarantee a credible election on 26th
October, 2017. I do not want to be party to such a mockery to
(annexed herein and marked as “MM29” is a Statement by Dr.
Roselyne Akombe in support of the foregoing).
56. THAT the next day, the 1st Respondent reacting to the resignation of Dr.
Roselyne Akombe also joined her in confessing to the said external and
internal influences. In his statement he said:
“I have made this point on numerous occasions to my colleagues
at the Commission. I have made several attempts to make critical
changes but all my motions have been defeated by a majority of
the Commissioners. Under such conditions, it is difficult to
guarantee free fair and credible elections. I am convinced that
without critical changes in key Secretariat staff, we may not have
a free, fair and credible election. I ask the staff who have been
adversely mentioned to step aside and allow the project team to
function without interference.
As a lawyer, I cannot continue to be pushed by majority
Commissioners to accept legal opinions that serve partisan
interests and are not grounded in the Constitution or the law. In
the least, this is intellectual dishonesty for which my professional
training demands that I abhor.
I would rather bow out with my name intact and my head lifted
high than to be a part of a process where personal interests dwarf
the interest of the nation. I realize that my actions in this noble
office will define me for life…” (annexed herein and marked as “MM30” is a Statement by the 1st
Respondent in support of the foregoing).
57. THAT this improper influence over the 2nd Respondent is evident by the
engagement of one Mr Evans Monari, who is counsel for the 3rd Respondent
in the electoral process, to advise and represent the 2nd Respondent on
matters relating to the said electoral process.
58. THAT while knowing that the said Evans Monari was the advocate for the
3rd Respondent advising him on issues relating to the intended election of
26th October, 2017; the 1st and 2nd Respondent retained the said Mr. Evans
Monari as their Advocate to represent them in NRB PETITION NO.514 OF
2017: HARUN MWAU –VERSUS-IEBC & OTHERS. (annexed herein and
marked as “MM31” is a copy of the proceedings and judgment in
support of the foregoing).
59. THAT the 1st and 2nd Respondents also fell under the improper influence
of various foreign envoys particularly Robert Godec the Ambassador of the
USA and Nic Hailey the UK High Commissioner to Kenya who on many
occasions acted as the Public relations officers of the 1st and 2nd
Respondents. (annexed herein and marked as “MM32” are copies of
statements by the said persons in support of the foregoing).
60. THAT the 1st and 2nd Respondents also fell under the improper influence
of the 3rd Respondent who also on various occasions explained and
defended to the public positions taken by the 1st and 2nd Respondents.
(annexed herein and marked as “MM33” is a video clip of the 3rd
Respondent’s running mate, Hon. William Ruto, who was more
prominent than the 1st Respondent in the defense of the 1st and 2nd
61. THAT I swear this Affidavit in support of the 4th Respondent’s response to
the instant Petition.
62. THAT all the relevant documents referred to herein have been annexed
63. THAT what is deponed hereinabove is true to the best of my knowledge and
belief, save where based on information sources whereof I have duly
SWORN at NAIROBI on 11th NOVEMBER, 2017)
By the said )……………………………
BEFORE ME )
COMMISIONER FOR OATHS )
DRAWN & FILED BY:
MURUMBA & AWELE ADVOCATES
MIRAGE PLAZA, MEZZANINE 1 – UNIT 7
WESTLANDS, CHIROMO ROAD
P.O. BOX 22255-00505
The Supreme Court of Kenya
COPIES TO BE SERVED ON:
1. SOWETO & COMPANY ADVOCATES
BIBLICA (1ST FLOOR), OPP. KNEC
DENNIS PRITT ROAD, CALEDONIA
P.O BOX 44287-00100
2. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION
P.O BOX 45371 – 00100