Supreme Court Judge Njoki Ndung'u has faulted her companions in the highest court of the land for having failed to fulfill one of their responsibilities.
While giving her dissenting ruling in the Raila Odinga versus the IEBC and two others, Justice Ndung'u faulted the judges for having not scrutinised the ballot papers before nullifying the August 8 presidential election.
The Judge argued that the Supreme Court, as the final verifying agent in election matters, had the authority to order a scrutiny of ballot papers, recount, re-tallying, and inspection of ballots.
She added that the Court would have been well within its mandate to inspect all the election materials.
"There was a verifiable paper trail which the court could use to verify the various allegations and which was not used. The effect of the judgement was to deny Kenyans their right to franchise," Justice Ndung'u opined.
Citing various instances, the Judge told the court that her evaluation of 291 forms 34B (constituency results) and the disputed forms 34A (polling stations results) showed no widespread discrepancies.
"The role of the Judiciary is to give a comprehensible interpretation of the law rather than determine a dispute mechanically and dispose of it without proper evidence," she argued.
Ndung'u observed that the Judges in the majority opinion should have relied on recounting the votes if there was ever a doubt on the credibility of the results announced by IEBC Chairman Wafula Chebukati.
However, according to the majority ruling, the 2017 presidential election was marred by irregularities and illegalities, hence, failed to meet the threshold set by electoral laws and the Constitution.
“Not every irregularity is enough to nullify an election, but we found the irregularities and illegalities had replicated across the country. Our findings were that the irregularities were of such substantial magnitude that any person in his right senses cannot say the elections were free and fair,” said the judges who ruled to annul the August poll.
