After the exchanges had ended at the pre-trial conference on Saturday night and the crowd in the court was dispersing, senior counsel Ahmednassir Abdullahi was overheard on the TV microphones complaining about the atmosphere in the room.
He described the environment as hostile and compared it to the hot and dry weather of Afghanistan.
Mr Abdullahi had drawn the attention of the judges to the matter at the first court session in the case where the National Super Alliance is challenging the re-election of President Uhuru Kenyatta.
While the lack of time has been one of the most cited issues in the case, the lack of space in the room where the highest court sits has also become evident.
“Since there are a lot of parties here and there is a lot of documentation, could the court kindly facilitate a better environment than this? Some of the authorities when we are submitting disappear,” he said.
The senior counsel suggested that each of the three parties in the case can have two or three of their lawyers occupy the front seats when making oral submissions so that the main lawyers can have a good environment.
And he had a point. Of the 26 lawyers for the parties in the case, only six spoke at the pre-trial hearing.
Three others, representing those who wanted to be a part of the case, also spoke.
But the room was full to the rafters. That it was warm was evidenced at one point when cameras zoomed in on Tharaka-Nithi Senator-elect Kithure Kindiki with his eyes closed.
That the room was fully packed was seen when some lawyers, including Jackson Awele in Mr Odinga’s team, spent most of the time standing, which Chief Justice David Maraga said would not be allowed.
Mr Otiende Amollo, who is also in Mr Odinga’s team, made the suggestion that the front bench be occupied by lawyers for the party making their case at any particular time. “It allows the space,” he said.
Justice Maraga said the lawyers not representing anybody should squeeze themselves in the back of the room. He said the television screens mounted outside the courtroom were for the public to follow the proceedings due to lack of space.
The small room in the 86-year-old building caught the attention of others watching at home.
MOVED TO KICC
Dr Joyce Nyairo, a cultural analyst, pointed this out on Twitter: “The court is the bench not the room. This hearing should have been moved to KICC. Tons of chairs and oxygen for all.”
Ms Betty Murungi, a lawyer, lamented the fact that there were few members of the public in the room.
“Supreme courts the world over make provision for the public. You’ve seen the overnight queues ahead of Scotus (Supreme Court of the United States) hearings. This must be addressed,” she said on Twitter.
The court sat from 7.30pm because Justice Maraga is a strict Adventist and cannot work on a Saturday before sunset.
Some of the lawyers, and Deputy CJ Philomena Mwilu, pointedly mentioned the church as they discussed what time on Sunday would be most appropriate to sit again.
“I am a communicant member of the Anglican Church and a former chancellor of that church but I do know that there is that passage in the Bible where one is permitted to pull out a donkey if it falls into a hole,” said senior counsel Paul Muite, who is leading the team representing IEBC.
Justice Mwilu bristled at the suggestion by AG Githu Muigai that the judges give the lawyers an extra day by sending their rulings on e-mail.
“When you talk about getting an extra day, you are getting that day from us and you are the same people who have been saying that you do not want a one-minute ruling. So, do not have mercy on us. We have not been sleeping the last few days, but we are still okay,” said Justice Mwilu.
When Mr Orengo asked the court to have the IEBC supply paginated copies of the documents they have already submitted, Mr Muite appeared to criticize Nasa’s approach to the case, saying: “The approach appears to be quite close to Njuri Ncheke. You have a document, you want to change it…”