Impeached Deputy President Rigathi Gachagua with lawyer Paul Muite at the Milimani High Court on October 22, 2024.
A complaint has been lodged with the Judiciary over alleged sabotage of the court’s e-filing system to undermine one of the cases involving impeached Deputy President Rigathi Gachagua.
Three petitioners have complained about interference with the filing of petition E568 of 2024 “with intent to defeat justice,” citing the questionable collapse of the e-filing payment system and suspect refund effected without the payee’s request that effectively blocked the petition.
The petitioners—Miruru Waweru, Andrew Njoroge and Mutonga Kamau—protest that the system glitch on October 18, when the National Assembly voted to endorse Dr Ruto’s nominee for deputy president, Prof Kithure Kindiki, was deliberate to block the petition from being considered by a judge as it sought to bar the House proceedings.
“At approximately 9.01am on the same day, and for the first time since paybills and till numbers were introduced by Safaricom (read M-Pesa) in Kenya, the payment was auto-refunded by the court system, thereby rejecting the petition. It is our view that the systems were malfunctioning in a deliberate attempt to block our petition and application from being placed before a judge timeously until the National Assembly completed the approval of the President’s deputy president nominee with the intent to defeat grant of stay orders sought,” the petitioners protest in a letter dated October 30.
In the letter addressed to Chief Registrar of the Judiciary Wilbroda Bonaya and stamped and received by the office on October 31, the petitioners ask: “How would three independent entities, that is the court, Safaricom and Kenya Commercial Bank, reverse a transaction without the payees’ approval? What would be the motive behind this mischief?
“Having said that, we humbly write to inform you that we have encountered what seems to us as a deliberate effort to sabotage the filing of the matter with a view to defeating justice.”
The complaint is also copied to Chief Justice Martha Koome. The petitioners, however, clarify that it is not against a judge. The petition filed on October 18 sought a constitutional interpretation on the grounds that “there was no impeachment motion that was before the Senate based on the fact that the Speaker of the National Assembly failed to communicate to the Senate Speaker within two days after the motion met the support threshold.”
The petitioners argued that the motion having been moved on October 1, the same ought to have been sent to the Senate Speaker on or before October 3.
They say the misnomer, as cited, needed to be interpreted whether it met the support threshold as set under Article 145(2). “It is our case that the impugned motion having been moved on October, 1 2024, the same ought to have been sent to the Speaker of Senate on or before October 3, 2024.”
They say they uploaded the petition, application, certificate of urgency and all annexures at 1.40am but “were unable to complete payment... until 2.12am.”
The frustration saw Mr Waweru call Safaricom's customer care number after numerous failed payment attempts.
"He was advised by a Safaricom customer care representative that he should try and pay via "334#, since the court's payment system interconnected to Kenya Commercial Bank Limited was rejecting M-pesa transactions," they explain in the complaint letter.
After the payment was eventually processed by Safaricom, "the payment failed to be registered in the court's e-filling portal and the invoice remained unpaid for hours until the amount was later auto refunded".
e-filing portal
They add that they noted that the court's e-filing portal was generating invoices without updating the outstanding balance payable, "which explains why the system was not reflecting payments on the material day as there was no balance to be paid".
They submit that "information technological systems work through logic circuits and always produce consistent results as long as there is no human interference".
They add that IT systems have no mind of their own and always run consistently until that time they are interfered with.
As such, they argue that "the systems were malfunctioning in a deliberate attempt to block their petition.
"After the petition was rejected and money was refunded, we finally paid again at 9:20 am and surprisingly, once the payment was received in the e-filing portal, the receipt generated by the system was done at 9:10:36 am," they wonder.
Emphasis is given as "although the M-Pesa payment was done at 9:20 am, the transaction receipt was 10 minutes early... How is this possible, can a receipt be issued before payment?".
They say that their file was finally handled by the Judge at 14:00:29 after the National Assembly had approved the nominee hence locking out the conservatory orders that they had sought.
To that end, they now want to be furnished with five answers demanded as hereunder.
"We have a few questions for you: Why was the initial payment refunded, why was our petition rejected, who approved the refund, why does your e-filing system receipt time stamps conflict with M-pesa payment time stamps showing unacceptable variances and why would this not be termed as a scandalous scheme to subvert justice?" they pose.
Nation.Africa's enquiry from advocates landed complaints that indeed there is a possibility of collusion to deny litigants justice.
"The media should tell the world that Kenya's Judiciary needs a thorough cleanup. The e-filing system is now being used to block litigants from filing cases which the authorities don’t like," said one advocate based in Nairobi.
The advocate added that "the system itself is unreliable and is always down, especially during the day. It is a great impediment to the administration of Justice. Urgent cases are no longer handled in real-time".
