Lawyers petitioning president Uhuru Kenyatta's win were asked on Wednesday to explain use of Roselyne Akombe's statement of resignation from IEBC.
Akombe quit her petition as commissioner in October and fled the country. She said the repeat poll "absolutely" could not be credible as it was being organised by a "very divided" commission".
She further told the BBC, in an interview from New York, that she and her brother had received death threats.
More on this: Citing death threats, Roselyn Akombe quits IEBC
Lawyers representing ICJ's Kenya chapter chairman Njonjo Mue told the court the resignation indicated IEBC was not prepared for the October 26 re-run.
"The only evidence is that the statement has been owned...IEBC has not denied that it actually came from Akombe," lawyer Julie Soweto said.
But Justice Jackton Ojwang' insisted that Soweto provide evidence that what Akombe said was admissible.
"This is the basic law of evidence. You cannot have validity without the owner," he said.
LETTERHEAD, AFFIDAVIT?
Soweto told the court the statement had a letterhead and that IEBC chairman Wafula Chebukati confirmed what Akombe wrote.
"This is a written statement on letterhead. The documents are in the public domain so they should not be ignored," she added.
"An inference of the truth must be drawn from the fact that Chebukati acknowledged the statement and referred to it in his affidavit and are part of the document that were sworn."
But before she could finish, Uhuru's lawyer Ahmednasir Abdullahi said Soweto cannot be making a statement that has not been admitted in court.
"Who is making Akombe's statement? You cannot make a statement made by the person without admissible evidence. My friend should tell the court the medium through which they are admitting these statements," he said.
Soweto reiterated Chebukati confirmed the statement when he presented his affidavit in court.
"IEBC goes ahead to express his own views with regard to that statement. That in itself shows an admission of this statement by Akombe...The purpose of Akombe was to show the environment in which IEBC was operating," she said.
The lawyer added the commission was aware of issues surrounding the elections but went on with the process.
"The chairman is admitting there is political interference within IEBC. He is admitting to Kenyans a week before the election that he cannot guarantee free are fair elections."
More on case: Canceling election left vacancy but IEBC ignored nominations - Harun Mwau
Also read: Supreme Court orders IEBC to provide election forms for scrutiny
RIGHT TO VOTE OR NOT
Soweto further told the Court that the electoral agency was operating within an environment of violence so Uhuru's victory, in the election that NASA candidate Raila Odinga boycotted, should be cancelled.
"It is our submission that the violence was foreseeable yet the first and second respondents chose to go on with the election," she said.
But Deputy Chief Justice Philomena Mwilu interjected, asking: "Is that relevant to this court?"
Soweto said: "It is relevant because some areas were affected. it is relevant that elections could not take place in some areas."
She further argued that the poll should take place in 200 counties yet this was not the case.
Mwilu asked her to address the effect of the violence to the Uhuru victory case.
"It denied a large chunk of Kenyans their right to vote," Soweto told the court.
Justice Njoki Ndung'u asked her to balance her concerns about violence.
"What about the rights of people who wanted to vote. Will you be addressing the people who voted and those who did not?" she posed.
Uhuru got 98 per cent votes in the repeat election whose turnout was 38.84 per cent. The vote was primarily boycotted in Kisumu, Siaya, Migori and Homa Bay counties after directions by Raila.
The Opposition leader said IEBC ignored their demands for irreducible minimums and that the result had been pre-determined.
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