Raila Amolo Odinga & Another vs. IEBC & 2 Others (2017) eKLR

Odinga & another v Independent Electoral and Boundaries Commission & 2 others;
Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae)
(Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR) (Election Petitions)
(20 September 2017) (Judgment) (with dissent - JB Ojwang & NS Ndungu, SCJJ)
Raila Amolo Odinga & another v Independent Electoral
and Boundaries Commission & 2 others [2017] eKLR
Neutral citation: [2017] KESC 42 (KLR)
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
ELECTION PETITIONS
PRESIDENTIAL ELECTION PETITION 1 OF 2017
DK MARAGA, CJ & P, PM MWILU, DCJ & V-P, JB
OJWANG, SC WANJALA, NS NDUNGU & I LENAOLA, SCJJ
SEPTEMBER 20, 2017
BETWEEN
RAILA AMOLO ODINGA .............................................................. 1ST PETITIONER
STEPHEN KALONZO MUSYOKA ............................................... 2ND PETITIONER
AND
INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION .... 1ST
RESPONDENT
CHAIRPERSON INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION ............................................................................... 2ND RESPONDENT
UHURU MUIGAI KENYATTA ................................................... 3RD RESPONDENT
AND
EKURU AUKOT ...................................................................... INTERESTED PARTY
MICHAEL WAINAINA ........................................................... INTERESTED PARTY
AND
ATTORNEY GENERAL ................................................................. AMICUS CURIAE
LAW SOCIETY OF KENYA ........................................................... AMICUS CURIAE
kenyalaw.org/caselaw/cases/view/140716/ 1
The Supreme Court declares the presidential election invalid for not being conducted in accordance
with the applicable law
The petition challenged the election of the 3rd respondent as the duly elected President. The court found that
the presidential election held on August 8, 2017 was not conducted in accordance with the Constitution and the
applicable law rendering the declared result invalid, null and void. The court further found that the irregularities
and illegalities in that election were substantial and significant that they affected the integrity of the election, the
results not-withstanding. The court thus found that the 3rd respondent was not validly declared as the President
elect and that the declaration was invalid, null and void.
Reported by Kakai Toili
Electoral law – presidential elections – validity of presidential elections - petition challenging the validity of
the president elect – claim that there was non-compliance with the Constitution and electoral laws in the August
2017 presidential elections - claim that there were various irregularities and illegalities during the conduct of the
elections – what were the principles of free and fair elections - Constitution of Kenya, 2010, articles 81, 86 and138;
Elections Act, Cap 7, sections 39(1c), 44 and 83; Elections (General) Regulations, 2012, regulation 87(1)(b).
Electoral Law - presidential elections - electoral process - transmission of results and declaration of results -
verification of results - process to be followed -whether the Court of Appeals’ decision in the case of Maina Kiai
provided a justification for declaring the results of the election of the President by the national returning officer
without reference to Forms 34A - whether the Court of Appeal’s decision relieved the Independent Electoral and
Boundaries Commission from its statutory responsibility of electronically transmitting in the prescribed form, the
tabulated results of an election for the President from a polling station to the constituency tallying center and to
the national tallying center - Elections Act, Cap 7, section 39(1C).
Electoral Law – elections - election offences - undue influence - what was the meaning of undue influence in the
context of an electoral malpractice - Election Offences Act, Cap 66, section 10, 14(1) and (2).
Electoral Law - presidential elections - requirements to be met for a candidate to be declared duly elected as
President - computation to determine the threshold of 50% +1- what was meant by the “votes cast” to be taken
into account in the computation to determine the threshold of 50% +1 - valid versus rejected votes in presidential
elections - what was the meaning of “votes”, “cast” and “ballot papers” - what was the place of valid versus rejected
votes in a presidential election - Constitution of Kenya, 2010, article 138(4); Elections Act, Cap 7, section 2.
Electoral Law – elections – transmission of election results – whether technology was a mandatory component of
Kenya’s electoral transmission process – Elections Act, Cap 7, section 39, 44 and 44A.
Statutes - interpretation of statutes - cannons of statutory interpretation - interpretation of section 83 of the
Elections Act - where section 83 had two limbs - compliance with the law on elections and irregularities that may
affect the result of the election - what was the proper interpretation of section 83 and whether the two limbs in the
provision were conjunctive or disjunctive - Elections Act, Cap 7, section 83.
Constitutional Law – fundamental rights and freedoms – political rights - right to challenge the results of a
presidential election petition - whether election petitions were right centric or form centric.
Constitutional Law – fundamental rights and freedoms – fundamental rights and freedoms vis a vis directive
principle in the Constitution - what prevailed where there was a conflict between constitutional fundamental
freedoms and the directive principles in the Constitution.
Evidence Law – burden and standard of proof - burden and standard of proof in presidential election petitions
– nature of burden and standard of proof - what amounted to and who bore the burden of proof in presidential
election petitions – what were the circumstances under which the evidential burden of proof shifted – what was
the standard of proof in election petitions - what was the distinction between the legal burden and the evidentiary
burden of proof in election petitions - Evidence Act, Cap 80, section 107.
Jurisdiction – jurisdiction of the Supreme Court – jurisdiction to determine matters pending before the High
Court - whether the Supreme Court could adjudicate an issue which was still the subject of judicial determination
at the High Court.
Words and Phrases – vote – definition of vote - expression of one’s preference or option in a meeting or election
by ballot, show of hands or other type of communication - Black’s Law Dictionary.
Words and Phrases – vote – definition of vote – opinion expressed, resolution or decision carried, by voting -
Dictionary of Modern Legal Usage.
Brief facts
On August 8, Kenya held the second general election under the Constitution of Kenya, 2010 (Constitution).
It was the rst time that a general election was held under article 101(1) of the Constitution which decreed
the holding of general elections every ve years on the second Tuesday of August in the 5th year. The general
election was also held for the rst time under an elaborate regime of electoral laws including amendments
to the Elections Act made to introduce the Kenya Integrated Electoral Management System (KIEMS) which
was a new device intended to be used in the biometric voter registration, and, on the election day, for
voter identication as well as the transmission of election results from polling stations simultaneously to the
Constituency Tallying Centre (CTC) and the National Tallying Centre (NTC).
On August 11, 2017, the 2nd respondent, exercising its mandate under article 138(10) of the Constitution,
as the Returning Ocer of the presidential election, declared the 3rd respondent, Uhuru Muigai Kenyatta,
the winner of the elections with 8,203,290 votes and the 1st petitioner , Raila Amollo Odinga as the runner’s
up with 6,726,224 votes. On August 18, 2017, the petitioners, Raila Amolo Odinga and Stephen Kalonzo
Musyoka, who were the presidential and deputy presidential candidates respectively of the National Super
Alliance (NASA) Coalition of parties, running on an Orange Democratic Movement (ODM) party ticket and
Wiper Democratic Movement ticket respectively, led the instant petition challenging the declared result of
that presidential election (the election).
The petition was anchored on the grounds that the conduct of the 2017 presidential election violated the
principles of a free and fair election as well as the electoral process set out in the Constitution, electoral laws
and regulations and that the respondents committed errors in the voting, counting and tabulation of results;
committed irregularities and improprieties that signicantly aected the election result; illegally declared
as rejected unprecedented and contradictory quantity of votes; failed in the entire process of relaying and
transmitting election results as required by law; and generally committed other contraventions and violations
of the electoral process.
The petitioners argued that the IEBC committed massive systemic and systematic irregularities which went
to the very core and heart of holding elections. It was the petitioners’ case that the election was marred
and signicantly compromised by intimidation and improper inuence or corruption. The most critical and
persistent claim was non-compliance with the law, the argument being that the 1st respondent announced
results on the basis of Forms 34B before receiving all Forms 34A. It was also alleged that the results announced
in Forms 34B were dierent from those displayed on the 1st respondents’ public web portal.
The petitioners similarly claimed that the IEBC deliberately inated votes cast in favour of the 3rd respondent.
As a consequence, they further argued, it was impossible to determine who actually won the presidential
election and/or whether the threshold for winning the election under the Constitution was met.
The petitioners’ further case was that the results that were streaming in from August 8, 2017 to August 11, 2017
showed a consistent dierence of 11% between the results of Uhuru Kenyatta and Raila Odinga. According to
the petitioners, such a pattern indicated that the results were not being streamed in randomly from the dierent
polling stations but that they were being held somewhere and adjusted using an error adjustment formula to
bring in a pre-determined outcome of results. Inter alia they claimed that the electronic system of transmission
was compromised by third parties who manipulated it and generated numbers for transmission to the NTC.
The petitioners also took issue with the large number of rejected votes accounting for at least 2.6% of the total
votes cast arguing that that had an eect on the nal results and the outcome of the presidential election.
The 1st and 2nd respondents led a joint response, while the 3rd respondent led a separate response to the
petition. They all opposed the petition and urged the court to nd that IEBC conducted a free, fair and credible
election. It was the respondents’ case that the presidential election was conducted in accordance with the
Constitution, the IEBC Act, the Elections Act, the Regulations thereunder, and all other relevant provisions
of the law. The respondents claimed that, contrary to the allegations of the petitioners, the process of relay and
transmission of results from the polling stations to the CTC and to the NTC, and from the CTC to the NTC
was simple, accurate, veriable, secure, accountable, transparent, open and prompt as required by article 81
(e) (iv) and (v) of the Constitution.
The respondents submitted that the alleged inaccuracies and inconsistencies in Forms 34A and 34B were
minor, inadvertent and in their totality did not materially aect the declared results. They urged the court to
nd that the petitioners had not substantiated the claim that the said irregularities aected at least 7 million
votes.
According to the 1st and 2nd respondents, the rejected votes did not account for 2.6% of the total votes cast as
contended by the petitioners. They submitted instead that the total number of rejected ballots was 81,685 as
declared in Form34C, a percentage of 0.54% of the votes cast. They thus urged that the rejected ballots were
properly excluded from valid votes in accordance with the law.
The 3rd respondent urged that a party seeking the nullication of a presidential election bore the burden
of proving that not only was there non-compliance with the election law but that the non-compliance also
aected the results of the election. He thus submitted that the only way the petitioners could impugn the
results reected in Forms 34A and 34B was through demonstrating either that legal votes were rejected or that
illegal votes were allowed and that that had an eect on the election.
Following the petitioner’s application at the pre-trial stage, the court granted an order for scrutiny and access
on terms that the petitioners and the 3rd respondent were to attain read only access to the certied photocopies
of the original Forms 34As 34Bs and 34Cs prepared at and obtained from the polling stations by presiding
ocers and used to generate the nal tally of the presidential election; to the Forms 34A, 34B and 34C from
all 40,800 polling stations; and to the scanned and transmitted copies of all Forms 34A and 34B. The scrutiny
process was conducted under the supervision of the Registrar of the Court and a report led. The Registrar
made the following observations:
1. Certain forms 34As appeared to have been duplicated.
2. Certain forms 34As and 34Bs appeared to be carbon copies.
3. Certain forms 34As and 34Bs appeared to be photocopies.
4. Some of the forms had no evidence of being stamped or signed.
It was recorded that out of the 291 Forms 34B scrutinized; 56 forms bore no watermark, 5 forms had not been
signed by the returning ocer, 31 forms had no serial numbers, 32 forms had not been signed by the respective
party agents, the “hand over” section of 189 forms had not been lled and the “take over” section of 287 forms
had not been lled. Further, a random scrutiny of 4,299 Forms 34A across 5 counties was undertaken to check
and conrm; whether the forms bore the watermarks and the serial numbers; whether the forms had been
signed and stamped by the presiding ocers; whether there was involvement of the party agents.
Some of the issues emanating from the scrutiny of Forms 34A were that:
1. some forms were carbon copies;
2. others were the original Forms 34As but did not bear the IEBC stamp;
3. other forms were stamped & scanned while others were photocopies;
4. others had not been signed.
The report further indicated that out of the 4,299 Forms 34As, 481 were carbon copies, but signed, 157 were
carbon copies and were not signed; 269 were original copies that were not signed; 26 of the Forms were stamped
and scanned. 1 form was scanned and not stamped; 15 had not been signed by agents, 58 were photo copies of
which 46 had not been signed; and 11 had no watermark security feature.
The petitioners contended that the report had proved beyond reasonable doubt, that the election process was
shambolic. They contended that the Form 34C which was used to announce the presidential results had no
security features and hence the authenticity of the results as announced in Form 34C could not be guaranteed.
Issues
i. What amounted to and who bore the burden of proof in a presidential election petition?
ii. What were the circumstances under which the evidential burden of proof shifted?
iii. What was the standard of proof in election petitions?
iv. What was the distinction between “votes”, “cast” and “ballot papers?”
v. What was the place of valid versus rejected votes in a presidential election.
vi. What was the meaning of “votes cast” to be taken into account in the computation to determine the
threshold of 50% +1 under article 138(4) of the Constitution.
vii. What was the proper interpretation of section 83 of the Elections Act and whether the two limbs in
the provision (compliance with the law on elections, and irregularities that may aect the result of the
election) were conjunctive or disjunctive?
viii. What were the principles of free and fair elections?
ix. Whether the Court of Appeals’ decision in the Maina Kiai case provided a justication for declaring
the results of the election of the president by the national returning ocers without reference to Forms
34A.
x. Whether the Court of Appeal’s decision in the Maina Kiai case relieved the Independent Electoral
and Boundaries Commission from its statutory responsibility of electronically transmitting in the
prescribed form, the tabulated results of an election for the President from a polling station to the
constituency tallying centre and to the national tallying centre.
xi. What was the meaning of undue inuence in the context of an electoral malpractice?
xii. Whether the Supreme Court could adjudicate issues which were still the subject of judicial
determination at the High Court.
xiii. Whether election petitions were right centric or form centric.
xiv. Whether technology was a mandatory component of Kenya’s electoral transmission process.
xv. What was the distinction between the legal burden and the evidentiary burden of proof in election
petitions?
xvi. What prevailed where there was a conict between constitutional fundamental freedoms and the
directive principles in the Constitution?
xvii. What was the proper test for verication of an electoral process?
Relevant provisions of the Law
Constitution of Kenya, 2010
Article 81- General principles for the electoral system
(e) free and fair elections, which are—
(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and,
(v) administered in an impartial, neutral, efficient, accurate and accountable manner.
Article 86 - Voting
At every election, the Independent Electoral and Boundaries Commission shall ensure that—
(a) whatever voting method that is used, the system is simple, accurate, verifiable, secure, accountable and
transparent;
(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling
station;
(c ) the results from the polling stations are openly and accurately collated and promptly announced by the
returning officer, and
(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place including the safe
keeping of election materials.
Article 138 - Procedure at presidential election
(3) In a presidential election—
(c) after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall
tally and verify the count and declare the result.
Elections Act, Cap 7
Section 2 - Interpretation
“ballot paper” means a paper used to record the choice made by a voter and shallinclude an electronic version of
a ballot paper or its equivalent for purposes of electronic voting.”
Section 4 - Register of Voters
“There shall be a register to be known as the Registerof Voters which shall comprise of−
(a) a poll register in respect of every polling station;
(b) a ward register in respect of every ward;
(c) a constituency register in respect of every constituency;
(d) a county register in respect of every county; and
(e) a register of voters residing in Kenya.
Section 10 - Eligibility to vote
(1) A person whose name and biometric data are entered in a register of voters in a particular polling station, and
who produces an identification document shall be eligible to vote in that polling station.”
Section 6A - Verication of biometric data
(1) “The Commission shall, not later than sixty days before the date of a general election, open the Register for
verification of biometric data by members of the public at their respective polling stations for a period of thirty days.
(2) The Commission shall, upon expiry of the period for verification specified under subsection (1), revise the
Register of Voters to take into account any changes in particulars arising out of the verification process.
(3) The Commission shall, upon expiry of the period for verification specified under subsection(1) publish- …the
Register of Voters online and in such manner as may be prescribed by regulations.
Section 39 - Determination and declaration of results.
(1C) For purposes of a presidential election the Commission shall-
(a) electronically transmit, in the prescribed form, the tabulated results of an election for the President from a
polling station to the Constituency tallying centre and to the national tallying centre;
(b) tally and verify the results received at the national tallying centre; and
(c) publish the polling result forms on an online public portal maintained by the Commission.
Section 44 - Use of technology.
(1) there is established an integrated electronic electoral system that enables biometric voter registration, electronic
voter identification and electronic transmission of results.”
(3) the Commission shall ensure that the technologyin use under subsection (1) is simple, accurate, verifiable, secure,
accountable and transparent.”
Section 44A - Complementary mechanism for identication of voters.
Notwithstanding the provisions of Section 39 and Section 44, the Commission shall put in place a complementary
mechanism for the identification of voters and transmission of election results that is simple, accurate, verifiable,
secure, accountable and transparent to ensure that the Commission complies with the provisions of Article 38 of
the Constitution.
Elections (General) Regulations, 2012
Regulation 87
(1) The constituency returning officer shall, as soon as practicable
(a)…
(b) deliver to the National tallying centre all the Form 34B from the respective polling stations and the summary
collation forms.”
Election Oences Act, Cap 66
Section 10 - Undue Inuence
(1) A person who directly or indirectly in person undue influence or through another person on his behalf uses or
threatens to use any force, violence including sexual violence, restraint, or material, physical or spiritual injury,
harmful cultural practices, damage or loss, or any fraudulent device, trick or deception for the purpose of or on
account of""
(a) Inducing or compelling a person to vote or not to vote for a particular candidate or political party at an election;
(b) Inducing or compelling a person to refrain from becoming a candidate or to withdraw if he has become a
candidate; or
(c)Impeding or preventing a person from being nominated as a candidate or from being registered as a voter,
Commits the offence of undue influence.
(2) …
(3) A person who directly or indirectly by duress or intimidation""
(a) Impedes, prevents or threatens to impede or prevent a voter from voting; or
(b) In any manner influences the result of an election, commits an offence.
(4) …
Section 14 - Use of public resources.
(1) Except as authorized under this Act or any other written law, a candidate, referendum committee or other
person shall not use public resources for the purpose of campaigning during an election or a referendum.
(2) No government shall publish any advertisements of achievements of respective government either in the print
media, electronic media, or by way of banners or hoardings in public places during the election period.
(3) For the purposes of this section, the Commission shall, in writing require any candidate, who is a Member of
Parliament, a county governor, a deputy governor or a member of a county assembly, to state the facilities attached
to the candidate or any equipment normally in the custody of the candidate by virtue of that office.
Leadership and Integrity Act, Cap 185C
Section 23 - Political neutrality
(1) An appointed State officer, other than a Cabinet Secretary or a member of a County executive committee shall
not, in the performance of their duties
(a) Act as an agent for, of further the interests of a political party or candidate in an election; or
(b) Manifest support for or opposition to any political party or candidate in an election.
(2) An appointed State Officer or public officer shall not engage in any political activity that may compromise or
be seen to compromise the political neutrality of the office subject to any laws relating to elections.
(3) Without prejudice to the generality of sub-section (2) a public officer shall not
(a) Engage in the activities of any political party or candidate or act as an agent of a political party or a candidate
in an election;
(b) Publicly indicate support for or opposition against any political party or candidate participating in an election.
Held
Per Majority
1. The common law concept of burden of proof (onus probandi) was a question of law which could be
described as the duty which lay on one or the other of the parties either to establish a case or to establish
the facts upon a particular issue. The law placed the common law principle of onus probandi on the
person who asserted a fact to prove it. Section 107 of the Evidence Act, Cap 80 of the Laws of Kenya,
legislated that principle.
2. An applicant who sought to annul an election bore the legal burden of proof throughout. Thus a
petitioner who sought the nullication of an election on account of non-conformity with the law or
on the basis of irregularities must adduce cogent and credible evidence to prove those grounds to the
satisfaction of the court. That was xed at the onset of the trial and unless circumstances changed,
it remained unchanged. Therefore, it was the petitioners who bore the burden of proving to the
required standard that, on account of non-conformity with the law or on the basis of commission
of irregularities which aected the result of the election, the 3rd respondent’s election as President of
Kenya should have been nullied.
3. Though the legal and evidential burden of establishing the facts and contentions which would
support a party’s case was static and remained constant throughout a trial with the plainti, however,
depending on the eectiveness with which he or she discharged that, the evidential burden kept shifting
and its position at any time was determined by answering the question as to who would lose if no
further evidence was introduced.
4. Once the court was satised that the petitioner had adduced sucient evidence to warrant impugning
an election, if not controverted, then the evidentiary burden shifted to the respondent, in most cases
the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was
compliance with the law or, if the ground was one of irregularities, that they did not aect the results
of the election. In other words, while the petitioner bore an evidentiary burden to adduce ‘factual’
evidence to prove his/her allegations of breach, then the burden shifted and it behoved the respondent
to adduce evidence to prove compliance with the law.
5. Besides the burden of proof, the law also imposed a degree of proof required to establish a fact. The
extent of the proof required in each case was what, in legal parlance, was referred to as the standard of
proof. Black’s Law Dictionary dened it as the degree or level of proof demanded in a specic case in
order for a party to succeed.
6. In electoral disputes, the standard of proof remained higher than the balance of probabilities but lower
than beyond reasonable doubt and where allegations of criminal or quasi criminal nature were made;
it was proof beyond reasonable doubt. Electoral disputes were not ordinary civil proceedings hence
reference to them as sui generis. It must be ascertainable, based on the evidence on record, that the
allegations made were more probable to have occurred than not.
7. No controversy arose as to the meaning of the word ‘cast’. In elections, the term referred to the ballot
papers inserted into ballot boxes. The problem which arose was the correct meaning that should be
ascribed to the term “votes”. Neither the Constitution nor the Elections Act dened the term “vote”.
The Elections Act, however, dened the term “voter” to mean a person whose name was included in
a current register of voters.
8. The distinction between a ballot paper and a vote was discernible. A ballot paper was the instrument in
which a voter recorded his choice, while a vote was the actual choice made by a voter. A ballot paper did
not become a vote by merely being inserted into the ballot box, as it could later turn out to be rejected.
9. A voter was said to have cast his or her vote when the procedure under regulations 69(2) and 70 of the
Elections (General) Regulations, 2012 was followed. That meant that, upon receipt of the ballot paper,
the voter proceeded to mark correctly, indicating his exact choice of the candidate he wished to vote for,
and then inserted that marked ballot paper into the respective ballot box for the election concerned.
10. In the circumstances, a rejected vote, a vote which was void, a vote that accorded no advantage to any
candidate, could not be used in the computation of determining the threshold of 50% + 1. A purposive
interpretation of article 138(4) of the Constitution, in terms of article 259 of the Constitution, led to
only one logical conclusion: that the phrase votes cast in article 138(4) meant valid votes. Consequently,
the court’s view in the 2013 Raila Odinga case would be maintained.
11. The court in the 2013 Raila Odinga case, did not render an authoritative interpretation of section
83 of the Elections Act as read together with the relevant provisions of the Constitution. At best, the
court only made a tangential reference to the section while addressing the applicable twin questions of
burden and standard of proof in an election petition.
12. There were two limbs to various provisions from comparative jurisdictions that were similar to section
83 of the Kenyan Elections Act: compliance with the law on elections, and irregularities that may aect
the result of the election. The issue in the interpretation of the provisions was whether or not the two
limbs were conjunctive or disjunctive. The use of the term ‘and’ in the cited English provisions rendered
the two limbs conjunctive under the English law. Save for minor changes, the conjunctive norm in the
two limbs of the provision as captured in the two English provisions appeared to have been borrowed
lock, stock and barrel by many Commonwealth countries, notably Nigeria, Ghana, Zambia, Tanzania
and Uganda. However, under both the repealed National Assembly and Presidential Elections Act
(section 28) and the Elections Act (section 83) the term used was “or” instead of “and” appearing in
the English Acts. The use of the word “or” clearly made the two limbs disjunctive under the Kenyan
law. While interpreting section 83 of the Elections Act, that distinction should be borne in mind.
13. Section 83 of the Kenyan Elections Act was dierent from other countries in two other fundamental
aspects.
a. The Kenyan Act did not have the word ‘substantially’ which was in many of the provisions
of other countries.
b. In 2011, the Elections Act (No. 24 of 2011) was enacted and repealed the National Assembly
and Presidential Elections Act. Section 83 of the Elections Act, to harmonize it with the
Constitution of Kenya 2010, added that to be valid, the conduct of the elections in Kenya must
comply with the principles laid down in the Constitution. That addition was purposive given
that the repealed Constitution of Kenya did not contain any constitutional principles relating
to elections. In interpreting the section therefore, the court had to rst pay due regard to the
meaning and import of the constitutional principles it envisaged.
14. Among the well-established cannons of statutory interpretation, was the requirement that in addition
to reading the statutes as a whole, where the words were clear and unambiguous, they must be given
their primary, plain, ordinary and natural meaning. The language used must be construed in its natural
and ordinary meaning. The sense must be that which the words used ordinarily bear. Kenya being
a constitutional system, the interpretation of the statutes must also be harmonized with the values
and principles in the Constitution. The wording of section 83 of the Elections Act was clear and
unambiguous. The words of the section must therefore be given their natural and ordinary meaning.
15. Guided by the principles of statutory interpretation, and given the use of the word “or” in section 83
of the Elections Act as well as some of the Supreme Court’s previous decisions, the court could not
conjunctively apply the two limbs of that section and demand that to succeed, a petitioner must not
only prove that the conduct of the election violated the principles in the Constitution as well as other
written law on elections but that he must also prove that the irregularities or illegalities complained
of aected the result of the election. Such an approach would be tantamount to a misreading of the
provision.
16. Annulling of presidential election results was a case by case analysis of the evidence adduced before
the court. Although validity was not equivalent to perfection, if there was evidence of such substantial
departure from constitutional imperatives that the process could be said to have been devoid of merit
and rightly be described as a spurious imitation of what elections should be, the court should annul
the outcome. The courts in exercise of judicial independence and discretion were at liberty to annul
the outcome of a sham election, for such was not in fact an election.
17. An election should be conducted substantially in accordance with the principles of the Constitution,
as set out in article 81(e). Voting was to be conducted in accordance with the principles set out in
article 86 of the Constitution. The Elections Act and the Regulations thereunder, constituted the
substantive and procedural law for the conduct of elections. If it should be shown that an election
was conducted substantially in accordance with the principles of the Constitution and the Election
Act, then such election was not to be invalidated only on ground of irregularities. Where however, it
was shown that the irregularities were of such magnitude that they aected the election result, then
such an election stood to be invalidated. Otherwise, procedural or administrative irregularities and
other errors occasioned by human imperfection were not enough, by and of themselves, to vitiate an
election. Where an election was conducted in such a manner as demonstrably violated the principles
of the Constitution and the law, such an election stood to be invalidated.
18. While the two limbs (compliance with the law on elections, and irregularities that may aect the result
of the election) should be applied disjunctively, it would not take the route that even trivial breaches
of the law should void an election. That was not realistic. It was a global truism that no conduct of any
election could be perfect. Even though the word ‘substantially’ was not in section 83 of the Elections
Act, it could be inferred in the words ‘if it appears’ in that section. That expression required that,
before vitiating it, the court should, looking at the conduct of the whole election, be satised that it
substantially breached the principles in the Constitution, the Elections Act and other electoral law. To
be voided under the rst limb, the election should be ‘a sham or travesty of an election’ or ‘a spurious
imitation of what elections should be’.
19. Section 83 of the Elections Act applied to the presidential election petitions as it did to all other
election disputes. The two limbs in section 83 could not be given a conjunctive interpretation. The
two limbs of section 83 should be applied disjunctively. In the circumstances, a petitioner who was
able to satisfactorily prove either of the two limbs of the section could void an election.
20. A petitioner who was able to prove that the conduct of the election in question substantially violated
the principles laid down in the Constitution as well as other written law on elections, would on that
ground alone, void an election. He would also be able to void an election if he was able to prove
that although the election was conducted substantially in accordance with the principles laid down in
Constitution as well as other written law on elections, it was fraught with irregularities or illegalities
that aected the result of the election.
21. An election such as the one at hand, had to be one that was both quantitatively and qualitatively in
accordance with the Constitution. It was one where the winner of the presidential contest obtained
more than half of all the votes cast in the election; and at least twenty-ve per cent of the votes cast in
each of more than half of the counties as stipulated in article 138(4) of the Constitution. In addition,
the election which gave rise to that result must be held in accordance with the principles of a free and
fair election, which were by secret ballot; free from intimidation; improper inuence, or corruption;
and administered by an independent body in an impartial, neutral, ecient, accurate and accountable
manner as stipulated in article 81. Besides the principles in the Constitution that governed elections,
section 83 of the Elections Act required that elections be conducted in accordance with the principles
laid down in that written law. The most important written law on elections was the Elections Act itself.
22. Elections were not only about numbers. Even in numbers, to arrive at a mathematical solution, there
was always a computational path one had to take, as proof that the process indeed gave rise to the
stated solution. Elections were not events but processes. Elections were not isolated events, but were
part of a holistic process of democratic transition and good governance. Incidentally, IEBC’s own
Election Manual (Source Book) recognized that an election was indeed a process. There were many
other authorities which spoke to the proposition that an election was a process. Therefore the process
of getting a voter to freely cast his vote, and more importantly to have that vote count on an equal basis
with those of other voters was as important as the result of the election itself.
23. Following the 2007 post-election violence, the Government formed the Independent Review
Commission (IREC), commonly known as the Kriegler Commission, to inquire into the conduct of
the 2007 elections and the cause of that violence. One of the critical areas of that Commission’s focus
was the integrity of vote counting, tallying and announcement of presidential election results. Among
the signicant recommendations the Kriegler Commission made related to the use of technology in
the electoral process. Pursuant to those recommendations, the process of integrating technology into
the conduct of elections was undertaken starting with the use of biometric voter registration (BVR)
equipment to register voters on a pilot basis in the run up to the 2010 referendum.
24. In the 2013 elections technology was applied for registration of voters, voter identication and results
transmission. However, that did not work very well in the 2013 general election and it was one of the
key issues that was raised in the 2013 presidential petition before the Supreme Court. Consequently,
in 2016 the Joint Parliamentary Select Committee on matters relating to the bi-partisan IEBC was
formed, discussed the use of technology in elections and made far-reaching recommendations which
led, to amongst others, extensive amendments to the Elections Act to provide for use of technology
and also technology dedicated regulations, the Elections (Technology) Regulations 2017.
25. The changes were meant to re-align several pieces of election-related legislation, with the principles
of the Constitution and the electoral jurisprudence that had been developed by the courts. The
cumulative eect of those changes was the establishment of what was being referred to as the Kenya
Integrated Election Management System (KIEMS). Henceforth, technology would be deployed to the
process of voter registration, voter identication and the transmission of results to the constituency
and national tallying centers. Regarding the voter register, the court in the 2013 Raila Odinga decision
had observed that there was no single voter register but an aggregation of several parts into one register.
All those legislative enactments had one objective; to ensure that in conformity with the Constitution,
the elections were free, fair, transparent and credible.
26. The terms ‘simple, accurate, veriable, secure, accountable and transparent’ engrafted were the
selfsame constitutional principles in articles 10, 38, 81 and 86. It was in that context that the court
would determine whether, the 1st respondent, conducted the presidential election in accordance with
the principles laid down in the Constitution and the law.
27. Regulation 87(3)(b) provided that: “upon receipt of Form 34A from the constituency returning
ocers under sub-regulation (1), the Chairperson of the IEBC shall tally and complete Form
34C.” However, the 1st respondent had to allegedly modify Form 34C to reect the entry of Forms
34B, which was the form declared by the Court of Appeal to be the source document to determine the
winner of a presidential election, instead of Forms 34A.
28. From a reading of the Court of Appeal decision in the Maina Kiai case, nowhere in that decision did
that court suggest that by arming the High Court’s decision which had declared section 39(2) and
(3) of the Elections Act unconstitutional, the Court of Appeal, somehow for unstated reasons, lent
judicial imprimatur to the 1st and 2nd respondent to either circumvent, or simply ignore the provisions
of section 39(1C) of the Elections Act. On the contrary, the appellate court’s decision was an unstinting
rearmation, if not a restatement of the letter and spirit of the constitutional principles embodied in
articles 81, 86, and 138(3)(c), relating to the conduct of elections.
29. With section 39(1C) of the Elections Act in mind, the Court of Appeal in the MainaKiai case was
categorical that the elaborate system, the electronic transmission of the already tabulated results from
the polling stations, contained in the prescribed forms, was a critical way of safeguarding the accuracy
of the outcome of elections, and the appellant or any of its ocers (1st respondent) could vary or even
purport to verify those results. The appellant, as opposed to its chairperson, upon receipt of prescribed
forms containing tabulated results for election of President electronically transmitted to it from the
near 40,000 polling stations, was required to tally and “verify” the result.
30. The polling station was the true locus for the free exercise of the voters’ will. The counting of the
votes as elaborately set out in the Elections Act and the Regulations, with its open, transparent and
participatory character using the ballot as the primary material, meant, as it must, that the count was
clothed with a nality not to be exposed to any risk of variation or subversion.
31. Neither the 1st nor the 2nd respondent had oered any plausible response to the question as to whether
all Forms 34A had been electronically transmitted to the national tallying center (NTC) as required by
section 39 (1C) of the Elections Act. What remained uncontroverted however was the admission that as
of August 14, 2017, three days after the declaration of results, the 1st respondent was not in a position to
supply the petitioner with all Forms 34A. Counsel for the 1st and 2nd respondents, by insisting that the
presidential results were declared on the basis of Forms 34B, all of which were available, also implicitly
admitted that not all Forms 34A were available by the time the 2nd respondent declared the ‘nal results’
for the election of the President.
32. Pursuant to an application by the petitioners, the court issued an order requiring the 1st respondent to
supply the petitioners and the 3rd respondent with all the scanned and transmitted Forms 34A and 34B
from all the 40, 883 polling stations on a read only basis with the option to copy in soft version. Had the
court’s order been complied with, it would have unraveled the mysterious puzzle surrounding Forms
34A. Regrettably, according to the information made available to court, by its appointed experts, the
1st respondent only allowed read-only access to that information without the option to copy in soft
version only two hours to the closure of court proceedings which never fully happened anyway. By that
time however, the puzzle had been unraveled in the mind of the court.
33. Failure to access or catch 3G and/or 4G network was not a failure of technology. The IEBC’s ICT
ocials must have known that there were some areas where network was weak or totally lacking and
should have made provision for alternative transmission. It could not have dawned on IEBC’s ICT
ocials, two days to the elections, that it could not access network in some areas. Under regulations 21,
22, and 23 of the Elections (Technology) Regulations 2017, IEBC was required to engage a consortium
of telecommunication network service providers and publish the network coverage at least 45 days
prior to the elections. In that regard, in one of its press briengs preceding the elections, IEBC assured
the country that it had carefully considered every conceivable eventuality regarding the issue of the
electronic transmission of the presidential election results, and categorically stated that technology
was not going to fail them. IEBC indeed armed that it had engaged three internet service providers
to deal with any network challenges. The IEBC’s explanation of alleged failure of technology in the
transmission of the presidential election results could not be therefore accepted. The so-called failure
of transmission was a clear violation of the law.
34. Among the 11, 0000 polling stations that IEBC claimed were o the 3G and 4G range, most parts of
the counties where the polling stations fell under had fairly good road network infrastructure. Even
if all of them were o the 3G and/or 4G network range, it would take, at most, a few hours for the
presiding ocers to travel to vantage points from where they would electronically transmit the results.
That they failed to do that, was an inexcusable contravention of section 39(1C) of the Elections Act.
35. The understanding of the process was that the gures keyed into the KIEMS corresponded with those
on the scanned images of Forms 34A. In the circumstances, it could not be understood why those
gures, which counsel referred to as mere “statistics” that did not go into the determination of the
outcome of the results, diered. In the circumstances, bearing in mind that IEBC had the custody of
the record of elections, the burden of proof shifted to it to prove that it had complied with the law
in the conduct of the presidential election especially on the transmission of the presidential election
results and it failed to discharge that burden.
36. IEBC opposed the application for access to its servers, claiming that such access would compromise the
security of the data in those servers. The objection was overruled and the application was partly allowed.
Though the IEBC’s claim of compromising the security of its servers was not accepted, considering
the fact that having spent billions of taxpayers’ money IEBC should have set a robust backup system,
nevertheless to assuage those fears, a “read only access” was granted which included copying where the
petitioners so wished. The report from the court appointed IT experts, holders of PhDs on IT and
lecturers in Strathmore and Kabianga Universities respectively, showed clear reluctance on the part of
IEBC to fully comply with the court’s order of August 28, 2017 to provide the information requested.
37. In summary the following were the items that were not availed to the petitioners; the 3rd respondent
and the court.
a. Firewalls without disclosure of the software version. IBEC refused to provide information
on internal rewall conguration contending that doing so would compromise and aect the
vulnerability of their system. The court appointed ICT Experts disagreed with that contention
and said it was dicult to ascertain whether or not there were any hacking activities.
b. IEBC was also required to provide certied copies of the certicates of penetration tests
conducted on the IEBC election technology system prior to and during the 2017 election
pursuant to regulation 10 of the Elections (Technology) Regulations 2017. They were not
provided. Instead IEBC issued uncertied documents and certicates by professionals which
did not conform to that regulation.
c. IEBC was also required to provide specic GPRS location of each KIEMS kit used during the
presidential election for the period between August 5, 2017 and August 11, 2017. That was not
provided. IEBC instead provided the GPS locations for the polling stations which was never
ordered to be granted.
d. Documents for allocated and non-allocated KIEMS kits procured were provided. However,
the information on whether the kits were deployed or not were incomprehensive.
e. The court ordered access to technical partnership agreements for IEBC election technology
system including a list of technical partners, kind of access they had and list of APIs for
exchange of data with partners. The documents were issued with the exception of the list of
APIs. The court appointed ICT experts said full information on APIs would have enabled
determination of what kind of activities may have taken place.
f. The court had also ordered IEBC to provide the petitioners with the log in trail of users and
equipment into the IEBC servers, the log in trails of users and equipment into the KIEMS
database management systems and the administrative access log into the IEBC public portal
between August 5, 2017 to date (being the date of the court order which was on August 28,
2017). They were also not provided. Instead, IEBC provided pre-downloaded logs in a hard
disk whose source it refused to disclose. The IT experts agreed with the petitioners’ contention
that the 1st respondent should have demonstrated that the logs emanated from IEBC servers
by allowing all parties to have read only access. Alternatively, the 1st respondent could have
accessed the information in the presence of the petitioners’ agents. Partial live access was also
only purportedly provided on August 29, 2017 at about 3.50pm without ability to access the
logs or even view them. The exercise was therefore a complete violation of the court order and
the access was not useful to the parties or the court.
38. IEBC failed to allow access to two critical areas of their servers: its logs which would have proved or
disproved the petitioners’ claim of hacking into the system and altering the presidential election results
and its servers with Forms 34A and 34B electronically transmitted from polling stations and county
tallying centers (CTCs). Those were the forms that section 39(1C) specically required to be scanned
and electronically transmitted to the CTCs and the NTC. In other words, the order of scrutiny was a
golden opportunity for IEBC to place before court evidence to debunk the petitioners’ said claims. If
IEBC had nothing to hide, even before the order was made, it would have itself readily provided access
to its ICT logs and servers to disprove the petitioners’ claims. However the IEBC contumaciously
disobeyed the order in the critical areas.
39. Failure to comply with a lawful demand, leave alone a specic court order, left the court with no option
but to draw an adverse inference against the party refusing to comply. In the case, IEBC’s contumacious
disobedience of the court’s order of August 28, 2017 in critical areas left no option but to accept the
petitioners’ claims that either IEBC’s IT system was inltrated and compromised and the data therein
interfered with or IEBC’s ocials themselves interfered with the data or simply refused to accept that
it had bungled the whole transmission system and were unable to verify the data.
40. The petitioners claimed that while 15,558,038 people voted for the presidential candidates, 15,098,646
voted for gubernatorial candidates and 15,008,818 voted for Members of Parliament (MPs) raising
questions as to the validity of the extra votes in the presidential election. No satisfactory answer was
given and the 1st respondent was responsible for that unexplained yet important issue.
41. The transmission of results was done in a manner inconsistent with the expectations of section 39(1C)
of the Elections Act. The principles in articles 81 and 86 of the Constitution had the expectations of
transparency, accountability, simplicity, security, accuracy, eciency and especially, veriability of the
electoral process. Those terms should be understood to refer to:
a. An accurate and competent conduct of elections where ballots were properly counted and
tabulated to yield correct totals and mathematically precise results;
b. an election with a proper and veriable record made on the prescribed forms, executed by
authorized election ocials and published in the appropriate media;
c. a secure election whose electoral processes and materials used in it were protected from
manipulation, interference, loss and damage;
d. an accountable election, whose polling station, constituency and national tallies together with
the ballot papers used in it were capable of being audited; and
e. a transparent election whose polling, counting and tallying processes as well as the
announcement of results were open to observation by and copies of election documents easily
accessible to the polling agents, election observers, stakeholders and the public and, as required
by law, a prompt publication of the polling results forms was made on the public portal.
42. Veriability must have had strong signicance in the August 8th election because the presiding ocers
were required to verify the polling station’s results in the presence of polling agents before sending
them to the CTC and NTC using the KIEMS KIT. The Maina Kiai decision, made it clear that Form
34A being the primary document, became the basis for all subsequent verications.
43. The whole exercise of limited access to the 1st respondent’s IT system was meant to conform and verify
both the eciency of the technology and also verify the authenticity of the transmissions allegedly
made to the CTC and NTC. Non-compliance and failure, refusal or denial by IEBC to do as ordered,
had to be held against it.
44. The critical element under article 138(3)(c) of the Constitution was the duty placed upon the IEBC
to verify the results before declaring them. To ensure that the results declared were the ones recorded
at the polling station. Not to vary, change or alter the results.
45. The duty to verify in article 138 of the Constitution was squarely placed upon the IEBC. That duty
ran all the way, from the polling station to the constituency level and nally, to the NTC. There was no
disjuncture in the performance of the duty to verify. It was exercised by the various agents or ocers
of the IEBC, that was to say that the presiding ocer at a polling station, the returning ocer at the
constituency level, and the Chair at the NTC. The verication process at all those levels was elaborately
provided for in the Elections Act and the Regulations thereunder.
46. The simultaneous electronic transmission of results from the polling station to the constituency and
national tallying centre, was not only intended to facilitate that verication process, but also acted as
an insurance against, potential electoral fraud by eliminating human intervention/intermeddling in
the results tallying chain. That, the system did, by ensuring that there was no variance between, the
declared results and the transmitted ones.
47. In the presidential election of August 8, 2017 however, the picture that emerged, was that things did
not follow that elaborate, but clear constitutional and legislative road map. It had been established that
at the time the 2nd respondent declared the nal results for the election of the President on August 11,
2017, not all results as tabulated in Forms 34A, had been electronically and simultaneously transmitted
from the polling stations, to the NTC. The 2nd respondent could not therefore be said to have veried
the results before declaring them.
48. The verication could only have been possible if, before declaring the results, the 2nd respondent
had checked the aggregated tallies in Forms 34B against the scanned Forms 34A as transmitted in
accordance with section 39(1C) of the Elections Act. Given the fact that all Forms 34 B were generated
from the aggregates of Forms 34A, there could be no logical explanation as to why, in tallying the Forms
34B into the Form 34C, the primary document (Form 34A), was completely disregarded.
49. Even if one were to argue, which at any at rate, was not the case in the instant matter, that the verication
was done against the original Forms 34A from all the polling stations, which had been manually ferried
to the tallying centre, that would beg the question as to where the scanned forms were, and why the
manually transmitted ones, arrived faster than the electronic ones.
50. The failure by the IEBC to verify the results, in consultation with the 2nd respondent, before the latter
declared them, therefore went against the expectation of article 138(3)(c) of the Constitution, just
as the failure to electronically and simultaneously transmit the results from all the polling stations
to the NTC violated the provisions of section 39(1C) of the Elections Act. Those violations of the
Constitution and the law, called into serious doubt as to whether the election could be said to have
been a free expression of the will of the people as contemplated by article 38 of the Constitution.
51. The Maina Kiai case did not restrain the IEBC from verifying the results before declaring them,
or relieve the former from the statutory duty of electronically transmitting the results. What the 2nd
respondent was barred from doing by the Court of Appeal and the High Court was to vary, alter, or
change the results relayed to the NTC from the polling stations and CTCs under the guise of verifying.
52. Article 86 of the Constitution placed upon the IEBC the onerous responsibility of devising and
deploying election systems that the voter could understand. The IEBC must further be expected to
provide access to crucial information that could enable either a candidate or a voter to cross check
the results declared by it with a view to determining, the integrity and accuracy thereof. In other
words, the numbers must just add up even where Parliament found it necessary to make provision for
a complementary system, it would not escape from the dictates of article 86 of the Constitution, hence
section 44A of the Elections Act.
53. When called upon to explain why all the Forms 34A had not been scanned, transmitted and published
on an online portal, in line with section 39 of the Elections Act, the IEBC, through counsel, alluded
to some form of complementary mechanism. However, the description of such a mechanism did
not appear to meet the yardsticks of veriability inbuilt in the Constitution and section 44A of the
Elections Act.
54. No election was perfect, even the law recognized that reality. It was however dicult to categorize
the violations of the law as minor inadvertent errors. IEBC behaved as though the provisions of
sections 39, 44 and 44A of the Elections Act and the provisions of article 88(5) of the Constitution
requiring it to exercise itspowers and perform its functions in accordance with the Constitution and the
national legislation, did not exist. IEBC failed to observe the mandatory provisions of article 86 of the
Constitution requiring it to conduct the elections in a simple, accurate, veriable, secure, accountable
and transparent manner. There was no transparency or veriability when IEBC, contrary to articles
35 and 47 of the Constitution, worse still, in contumacious disobedience of the court’s order, refused
to open its servers and logs for inspection.
55. The petitioners had discharged the legal burden of proving that the 2nd respondent, declared the nal
results for the election of the President, before the IEBC had received all the results from Forms 34A
from all the 40,883 polling stations contrary to the Constitution and the applicable electoral law. The
2nd respondent, declared, the results solely, on the basis of Forms 34B, some of which were of dubious
authenticity. The 1st respondent in disregard of the provisions of section 39(1C), of the Elections Act,
either failed, or neglected to electronically transmit, in the prescribed form, the tabulated results of an
election of the president, from many polling stations to the NTC.
56. No evidence had been placed to suggest that, the processes of voter registration, voter identication,
manual voting, and vote counting were not conducted in accordance with the law. As a matter of fact,
nobody disputed the fact that on August 8, 2017, Kenyans turned out in large numbers, endured long
hours on queues and peacefully cast their votes. However, the system thereafter went opaquely awry
and whether or not the 3rd respondent received a large number of votes became irrelevant because, read
together, sections 39(1C) and 83 of the Elections Act stated otherwise.
57. Whereas the role of observers and their interim reports were heavily relied upon by the respondents as
evidence that the electoral process was free and fair, the evidence before the court pointed to the fact
that hardly any of the observers interrogated the process beyond counting and tallying at the polling
stations. The interim reports could not therefore be used to authenticate the transmission and eventual
declaration of results.
58. The 2017 presidential election was not conducted in accordance with the principles laid down in
the Constitution and the written law on elections in that it was, inter alia, neither transparent nor
veriable. On that ground alone, and on the basis of the interpretation given to section 83 of the
Elections Act, the presidential election had to be nullied.
59. While the impugned election was conducted in violation of relevant constitutional principles, the
same was also alleged to have been fraught with illegalities and irregularities that rendered its result
unveriable and thus indeterminate. Illegalities referred to breach of the substance of specic law while
irregularities denote violation of specic regulations and administrative arrangements put in place.
60. On allegations of undue inuence, bribery and voter intimidation, it was deposed that the 3rd
respondent brazenly violated section 14 of the Elections Oences Act by advertising and publishing in
the print and electronic as well as on billboards, achievements of his Government. Section 14 provided
that no Government shall publish any advertisements of achievements of the respective Government
either in the print media, electronic media, or by way of banners or hoardings in public places during
the election period. That prohibition was what article 81(e)(ii) of the Constitution referred to as
improper inuence. The rationale behind that prohibition, in the context of the case was that whatever
achievements the current Government may have made, resulting from expenditure of public funds,
should not be taken advantage of by the Government as a campaign tool. However in that regard, the
1st petitioner had not attached any material evidence to support his allegations of undue inuence,
bribery and voter intimidation. That being the case, no determination on that issue could be made for
the lack of material particulars.
61. The 3rd respondent had submitted that the question whether he was allegedly sponsoring the
advertisement of the Government’s achievement in the print and electronic media was pending at
the High Court and the petitioners did not contest that averment. The Supreme Court could not
adjudicate on an issue which was the subject of judicial determination at the High Court.
62. The letter by the 2nd respondent to the EACC did not apply to the holder of the oce of the presidency
in which category the 3rd respondent fell. Furthermore, section 14(3) of the Election Oences Act
which provided for the IEBC’s enforcement powers, did not apply to persons holding the oce of the
President. The interpretation of section 14 of the Election Oences Act was a live matter at the High
Court; any allegation that touched on that section could not be addressed.
63. Undue inuence in the context of election oences was dened under section 10 of the Election
Oences Act. Though the wording of the Indian Penal Code section 171(C) was materially dierent
from section 10 of the Election Oences Act, the meaning injected into the Indian Penal Code showed
its applicability in the Kenyan context. The Supreme Court of India in the consolidated cases explicitly
stated that the test was whether there was interference or an attempted interference with the free
exercise of any electoral right. Similarly, section 10 of the Election Oences Act, whose marginal note
was ‘undue inuence’, forbade any impediment of a person’s exercise of the electoral right. In India,
the electoral right of an elector, was dened under section 171A(b) of the Indian Penal Code, as the
right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or
refrain from voting at an election. That was comparable to article 38(3) of the Constitution of Kenya,
2010 which conferred certain political rights on every citizen without any restrictions including the
right to vote by secret ballot in an election.
64. The Indian courts laid down a distinction between mere canvassing for votes and acts of undue
inuence. In doing so, the Supreme Court pronounced itself that if the mere act of canvassing in
favour of one candidate as against another were to amount to undue inuence, the very process of a
democratic election shall have been stied because, the right to canvass support for a candidate was as
much important as the right to vote for a candidate of one's choice. Therefore, in order that the oence
of undue inuence could be said to have been made out within the meaning of section 171C of the
Indian Penal Code, something more than the mere act of canvassing for a candidate must be shown to
have been done by the oender. The act alleged as constituting undue inuence must be in the nature
of a pressure or tyranny on the mind of the candidate or the voter. The mere act of canvassing for a
candidate could not amount to undue inuence within the meaning of section 171C of the Indian
Penal Code.
65. The language used in the denition of undue inuence implied that an oence of undue inuence
would be held to have been committed if the elector having made up his mind to cast a vote for a
particular candidate did not do so because of the act of the oender, and that could only be if he was
under the threat or fear of some adverse consequence. Whenever any threat of adverse consequences
was given, it would tend to divert the elector from freely exercising his electoral right by voting for the
candidate chosen by him for the purpose. But, in cases where the only act done was for the purpose
of convincing the voter that a particular candidate was not the proper candidate to whom the vote
should be given, that act could not be held to be one which interfered with the free exercise of the
electoral, right.
66. The test of undue inuence was whether the 3rd respondent’s conduct, if satisfactorily proved, created
an impression in the mind of a voter that adverse consequences would follow as a result of their exercise
of their political choices. Words alone, without any other demonstrable evidence were not sucient
to enable the court make a conclusive nding on the issue. Further, the evidence of Dr. Kibicho,
explaining the context within which the 3rd respondent uttered the words, remained undisputed.
Consequently, the petitioners had not proved their case on the issue to the required standard.
67. It was alleged that the 3rd respondent improperly inuenced voters by issuing cheques to internally
displaced persons (IDPs) during campaign rallies. A perusal of the attached video transcript, which
was in the form of an interview conducted by one of the local news reporting station showed that the
transcript did not contain a satisfactory basis or convincing evidence to the eect that the 3rd respondent
acted in any inappropriate manner with regard to the release of funds to IDPs.
68. The petitioners submitted that since Cabinet Secretaries were State Ocers, they ought to be impartial,
but that section 23 of the Leadership and Integrity Act gave them leeway for impartiality and hence
sought to have the section declared unconstitutional. The Supreme Court may in exercise of its
jurisdiction interpret the Constitution and in doing so, where the need required, declare an oending
provision of the law to be unconstitutional. Such was a natural consequence of any legal reasoning if
the court were to maintain its delity to the law. However, the instant scenario was peculiar in the sense
that, the petitioners did not at the very rst instance, through their pleadings, indicate their intentions
to declare section 23 to be unconstitutional.
69. The rule of the thumb had always been that parties must be bound by their pleadings and especially
in a case such as the instant one was where the petitioner was asking the court to address its mind to
the possible unconstitutionality of a legal provision. For proper consideration therefore, and especially
in order to do justice to both the parties and the greater public interest, there was disadvantage placed
upon the 3rd respondent especially who had no benet to bring his thoughts into that cause. In the
circumstances, section 23 of the Leadership and Integrity Act could not be found unconstitutional.
The matter should be addressed in the right proceedings in the right circumstances.
70. A number of conclusions/observations could be made from the scrutiny exercise ordered by the
court: Firstly, the Form 34C, that was availed for scrutiny was not original. Whereas the copy availed
for scrutiny was certied as a copy original, no explanation was forthcoming to account for the
whereabouts of the original form. Regulation 87(3) obligated the 2nd respondent to tally and complete
Form 34C and to sign and date the forms and make available a copy to any candidate or chief agent
present. That regulation presupposed that the Chairman of IEBC retained the original. The 2nd
respondent was required to avail the original Form 34C for purposes of access and to that extent the
2nd respondent did not.
71. From the report on Forms 34B, the Registrar outrightly made an observation that some of the forms
were photocopies, carbon copies and not signed. Out of the 291 forms, 56 did not have the watermark
feature while 31 did not bear the serial numbers. A further 5 were not signed at all and 2 were only
stamped by the returning ocers but not signed. In addition, a further 32 Forms were not signed by
agents. The above incidences were singled out since they were incidences where the accountability and
transparency of the forms were in question.
72. The adavit of a Director of the IEBC enumerated all the security features of statutory forms which
diered completely with the abundance of caution submission by counsel for IEBC and the ‘not in
the law’ argument by the IEBC. There was a reasonable expectation that all the forms ought to be
in a standard form and format; and though there was no specic provision requiring the forms to
have watermarks and serial numbers as security features, there was no plausible explanation for that
discrepancy more so when it had been deponed that all forms had those features.
73. The schedule to the Elections Act provided for a sample of the format of the Form 34B. As was
evident from the schedule, the ‘Hand Over’ section was lled when the Forms 34A were submitted to
the constituency returning ocer whereas the ‘Taking Over’ section was lled when the Chairperson
received the Forms 34A. Indeed regulation 82(1) required the presiding ocer to physically ferry
the actual results to the constituency returning ocer. Further, regulation 87(1)(b) required the
constituency returning ocer to deliver to the NTC all the Forms 34A from the respective polling
stations and the summary collation forms. Regulation 87(3)(a) went on to provide that, upon the
receipt of Form 34A from the constituency returning ocer, the Chairperson of the IEBC would verify
the results against Forms 34A and 34B received from the constituency returning ocer. It could not
be understood how the 1st and 2nd respondent could deny the receipt of the prescribed forms. In any
case, during the hearing of the scrutiny application, counsel for the 1st respondent submitted that the
IEBC was in possession of all the original Forms 34A and 34B and went ahead to suggest that, it was
willing to release the same forms for inspection. During the scrutiny exercise that was subsequently
carried out, the IEBC produced majority of those original forms.
74. The purpose of including the requirement for indicating the number of forms received by various
ocers was to ensure accountability and transparency. It was therefore unfortunate that, out of the
random sample of 4,299 Forms 34A examined, a total of 189 Forms had not been lled in the hand-
over section, whereas 287 forms had not been lled in the take-over section. Such kind of scenario
raised the question as to the kind of verication done, if at all, by the Chairperson of the IEBC.
75. As for Forms 34A, the sampled 4,299 forms revealed that 481 of them were carbon copies, 269 were
not stamped while 257 of the carbon copies were not stamped. 11 forms had no water mark while
46 of the photocopies were not signed. 58 forms were not stamped. Considering the sample size, the
discrepancies were widespread.
76. Elections were the surest way through which the people expressed their sovereignty. The Constitution
was founded upon the immutable principle of the sovereign will of the people. The fact that, it was the
people, and they alone, in whom all power resided; be it moral, political, or legal. They exercised such
power, either directly, or through the representatives whom they democratically elected in free, fair,
transparent, and credible elections. Therefore, whether it be about numbers, whether it be about laws,
whether it be about processes, an election must at the end of the day, be a true reection of the will of
the people, as decreed by the Constitution, through its hallowed principles of transparency, credibility,
veriability, accountability, accuracy and eciency.
77. Article 38 of the Constitution provided inter alia, that every citizen was free to make political choices,
which included the right to free, fair, and regular elections, based on universal surage and the free
expression of the will of the electors. That mother principle must be read and applied together with
articles 81 and 86 of the Constitution, for to read article 38 in a vacuum and disregard other enabling
principles, laws and practices attendant to elections, was to nurture a mirage, an illusion of free will,
hence a still-born democracy. It was also against that background that the impact of the irregularities
that characterized the presidential election would be considered.
78. Not every irregularity, not every infraction of the law was enough to nullify an election. Were it to be
so, there would hardly be any election in the Kenya, if not the world, that would withstand judicial
scrutiny. The correct approach therefore, was for a court of law, to not only determine whether the
election was characterized by irregularities, but whether, those irregularities were of such a nature, or
such a magnitude, as to have either aected the result of the election, or to have so negatively impacted
the integrity of the election, that no reasonable tribunal would uphold it.
79. In view of the interpretation of section 83 of the Elections Act rendered, that inquiry about the eect
of electoral irregularities and other malpractices, became only necessary where an election court had
concluded that the non-compliance with the law relating to that election, did not oend the principles
laid down in the Constitution or in that law. But even where a court has concluded that the election
was not conducted in accordance with the principles laid down in the Constitution and the applicable
electoral laws, it was good judicial practice for the court to inquire into the potential eect of any
irregularities that may have been noted upon an election. That helped to put the agencies charged with
the responsibility of conducting elections on notice.
80. In the impugned presidential election, one of the most glaring irregularities that came to the fore was
the deployment by the IEBC of prescribed forms that either lacked or had dierent security features.
81. Form 34C, which was the instrument in which the nal result was recorded and declared to the public,
was itself not free from doubts of authenticity. That Form, as crucial as it was, bore neither a watermark,
nor serial number. It was instead certied as being a true copy of the original. Of the 4,229 Forms 34A
that were scrutinized, many were not stamped, yet others, were unsigned by the presiding ocers, and
many more were photocopies. Five of the Forms 34B were not signed by the returning ocers. It was
not clear why a returning ocer or a presiding ocer could fail or neglect to append his signature to
a document whose contents, he/she had generated. The appending of a signature to a form bearing
the tabulated results was the last solemn act of assurance to the voter by such ocer, that he stood by
the numbers on that form.
82. Where the quantitative dierence in numbers was negligible, the court should not disturb an
election. The illegalities and irregularities committed by the IEBC were of such a substantial nature
that no court properly applying its mind to the evidence and the law as well as the administrative
arrangements put in place by IEBC could, in good conscience, declare that they did not matter, and
that the will of the people was expressed nonetheless. The electoral law was amended to ensure that
in substance and form, the electoral process and results were simple, yet accurate and veriable. The
presidential election of August 8, 2017, did not meet that simple test and could hence not be validated,
the results notwithstanding.
83. The court had the mandate, to invalidate a presidential election under article 140(3) of the
Constitution as read with section 83 of the Elections Act, inter alia, for reasons that there had been
non-compliance with the principles in articles 10, 38, 81 and 86 of the Constitution as well as in
the electoral laws. One of the clear reliefs in article 140(3) was that should a presidential election be
invalidated, then a fresh election would be held within 60 days of the court’s decision in that regard.
Parties at the hearing of the petition did not address the court on the issue, however, and so it was not
t to delve into an interpretation of that term in the judgment. The term fresh election was addressed
in the 2013 Raila Odinga case and was the subject of an application by the 1st interested party within
the instant petition. The application had been xed for hearing on September 21, 2017 and the court
would deal with it on its merits.
84. IEBC did not conduct the August 8, 2017 presidential election in conformity with the Constitution
and electoral law. Irregularities and illegalities were also committed in a manner inconsistent with the
requirement that the electoral system ought to be inter alia simple, veriable, ecient, accurate and
accountable. Although the petitioners claimed that various electoral oences were committed by the
ocials of the IEBC no evidence was placed before the court to prove that allegation. What was in
evidence was a systemic institutional problem and there was no specic nger prints of individuals who
may have played a role in commission of illegalities. It was therefore not possible to impute any criminal
intent or culpability on either the 1st and 2nd respondent, or any other commissioner or member of the
1st respondent. There was also no evidence of misconduct on the part of the 3rd respondent.
85. Costs generally follow the event, but the instant petition had brought to the fore the need for IEBC
to adhere strictly to its mandate and not to exhibit the casual attitude it did in the conduct of the
impugned election and in defence of the petition. It was a heavily public funded constitutional organ
and to burden Kenyans tax payers with litigation costs would be a grave matter which the court deemed
unnecessary in the petition.
86. The constitutional mandate placed upon the IEBC was a heavy yet, noble one. In conducting the
fresh election and indeed in conducting any future election, IEBC must do so in conformity with the
Constitution and the law. In conducting the fresh election, IEBC must put in place a complementary
system that accords with the provisions of section 44(A) of the Elections Act. Such a system only came
into play when technology failed.
87. The petitioners had discharged the legal burden of proof as to squarely shift it to the 1st and 2nd
respondent. Having so shifted, the burden had not in turn been discharged by the 1st and 2nd respondent
as to raise substantial doubt with regard to the petitioners’ case.
88. [Obiter] “The greatness of a nation lies not in the might of its armies important as that is, not in the
largeness of its economy, important as that is also. The greatness of a nation lies in its delity to the
Constitution and strict adherence to the rule of law, and above all, the fear of God. The Rule of law
ensures that society is governed on the basis of rules and not the might of force. It provides a framework
for orderly and objective relationships between citizens in a country. In the Kenyan context, this is
underpinned by the Constitution.”
89. [Obiter] “Have we in executing our mandate lowered the threshold for proof in presidential elections?
Have we made it easy to overturn the popular will of the people? We do not think so. No election is
perfect and technology is not perfect either. However, where there is a context in which the two Houses
of Parliament jointly prepare a technological roadmap for conduct of elections and insert a clear and
simple technological process in Section 39(1C) of the Elections Act, with the sole aim of ensuring a
veriable transmission and declaration of results system, how can this court close its eyes to an obvious
near total negation of that transparent system?”
Dissenting opinion
Per JB Ojwang, SCJ
1. The objective merits of the case must be drawn from the foundation of fact. Fact was dened as
something that actually existed; an aspect of reality. Therefore, fact was as reliable as the concrete
foundations of a skyscraper; and it was to be counted upon as a basis of objectivity and truth. The
practice of law and more particularly, the motions of the judicial process via the minds and hands
of judges – society’s trustees for justice – were invariably lodged upon the pillars of fact, this being
proered through evidence.
2. The petitioners did not seek an ascertainment of the true number of votes cast for the 1st petitioner
and for the 3rd respondent. The petitioners had focused the burden of their case on apprehensions
as to the perfect security of the transmission system. They claimed an improper tallying of votes
from dierent polling stations, though that was denied, on the basis of specic evidence, and exhibits
showing the contrary. They further alleged improper conduct during election, on the part of certain
Government ocials, said to have unduly beneted the 3rd respondent’s electoral platform – but those
attributions to the 3rd respondent of improper inuence, intimidation and corruption, were not just
unsubstantiated, but also failed to meet the high standards of proof required for criminal charges.
3. The petitioners asserted, in broad terms, that the 1st respondent, in the conduct of elections, did not
abide by the terms of article 86 of the Constitution, which required elections to be conducted in a
manner that was simple, accurate, veriable, secure, accountable and transparent. Yet the use of the
manual ballot paper would clearly meet such conditions: the voter had no diculty in marking it; its
reality and visibility was not in doubt; it was veriable, as a check so readily revealed the voter’s exercise
of his or her right of choice; it was secure; it was transparent; it was accountable.
4. The votes cast had been announced at the polling stations, where they were tabulated and results
announced. From that initial ascertainment of the voting situation, the results were collated at the CTC
and announced at that level. The IEBC thereafter provided the Forms 34A from all polling stations;
Forms 34B from CTCs; and Forms 34C at the NTC– which was signed by all the presidential election
agents, save for the petitioners’ agent. Thus, from the evidence on record, the claim of non-compliance
with the terms of article 86 of the Constitution could not stand.
5. Judges entertaining the competing claims of parties, constantly had to form an opinion, and, from
objective criteria and conviction, eliminate the credible from the incredible, the truth from the untruth.
That had to be done in the instant case. More substantial and persuasive evidence had emanated from
the respondents’ side. The respondents’ factual accounts were rm and gripping. They were credible,
and represented the substantial truth. However, no account of equal strength was beckoning from the
petitioners.
6. On facts conveyed through evidence, in support of the petitioners’ case, they were on weak grounds,
as compared to the respondents. In establishing the merits of their case, the petitioners had both the
ultimate legal burden of proof, and the shifting evidential burdens falling upon them. They did not
discharge even the early evidential burden – the eect being, in the end, that they made no valid case
against the respondents.
7. The petitioners’ claims as to the conduct and management of the presidential elections by the 1st
respondent invoked the question as to the 1st respondent’s compliance with the law in every detail,
though without necessarily adverting to the objective facts, as borne by the evidence. The court had
to consider whether such contentions should be a basis for annulling the outcome of the presidential
election held on August 8, 2017.
8. The Constitution which represented the people’s much laboured initiatives to nd a pacic, rational
and humane regulatory structure for governance, bore certain principles, and it safeguarded certain
rights and values in unambiguous terms. It safeguarded the rule of law, democracy, participation
of the people and political rights, in detailed terms which included the provision that every adult
citizen had the right, without unreasonable restrictions, to vote by secret ballot in any election; and
to be a candidate for public oce, and, if elected, to hold oce. Such sacrosanct safeguards had to
be so interpreted as to accord them true operational meaning. The same Constitution entrusted the
interpretive mandate to the courts, to which, for the faithful discharge of the task, the voters had
entrusted their adjudicative sovereignty.
9. Under article 20(4)(a) of the Constitution, the Supreme Court, just like the other courts, was under
obligation to promote the values that underlay an open and democratic society based on human
dignity, equality, equity and freedom. The Supreme Court, just like the other courts, in the course of
performing its safeguarded interpretive mandate, was under obligation to be guided by the principles;
that justice should be administered without undue regard to procedural technicalities, and that the
purpose and principles of the Constitution should be protected and promoted.
10. The Constitution enjoined all courts, in the exercise of their interpretive mandate, to adhere to certain
well-dened paths:
a. a manner that promoted the Constitution’s purposes, values and principles;
b. a manner that advanced the rule of law, the human rights and fundamental freedoms in the
Bill of Rights;
c. a manner that contributed to good governance.
11. The prescriptions, in the context of the exercise of the people’s electoral rights as took place on August
8, 2017, were the rm foundation upon which the dissent opinion was founded from the majority
opinion, in the critical election petition. The majority decision had not only done short shrift to the
governing terms of the Constitution, but also failed to adhere to the clear path of the law which had
evolved, including the court’s precedents on electoral law.
12. Just as with the Constitution itself, so with the regulatory set of norms, including the statutes and
regulations: they all fell to the interpretive mandate of the courts. That fact, on the plane of legal
scholarship, ought to be apprehended as the inherent common law chain that ran through the motions
of judicialism in Kenya, as in so many other countries of the common law world. The long-established
rationales of the judicial method still remain, and they ordained the espousal of the doctrine of
precedent – a universal concept which, was expressly replicated in the Constitution.
13. Case law, the law as interpreted and applied by judges, on the recorded merits of each matter, had
forever been the cornerstone of the common law. It was precisely the common law’s focused and
authentic appraisal of the facts of each case, that made it ever so compelling, as a dening strand in the
judicial contribution to progressive, modern governance in conditions of democracy.
14. The challenges of adjudication dictate that, the gains of the past, authoritative interpretation by a
discerning and responsible court, be perceived as representing a precious juristic civilization; and those
were for keeps, as a reference-point for the conscientious and eective resolution of later disputes.
15. The judicial approach in the sphere of electoral law was obviously inseparable from the Constitution’s
values and the principles of democracy. It thus behooved the court to pay due deference to the
fundamentals of the sets of cases that had, in the last several years, been determined by the Supreme
Court, on the subject of elections – including presidential elections. Such was, quite conclusively, the
most dependable course of the law that Kenya’s lawyers should engage, in the rst place.
16. In the 2013 Raila Odinga case, the court took into account the nature of the governance mandate
under the Constitution, and, in response to a challenge to the integrity of the presidential election,
laid down a set of guiding parameters. It observed that the oce of the President was the focal
point of political leadership in a democratic system, and was constituted strictly on the basis of
majoritarian expression. The whole national population had a clear interest in the occupancy of that
oce which, they themselves renew from time to time through the popular vote. Flowing from the
crucial majoritarian factor in the lling of the primary oce of the Executive branch, the Supreme
Court, in that case, dened its orientation as regards the resolution of an electoral dispute, such as the
instant case before the court.
17. As a basic principle, it was not for the court to determine who occupied the presidential oce; save
that the court, as the ultimate judicial forum entrusted under the Supreme Court Act, 2011 with the
obligation to assert the supremacy of the Constitution and the sovereignty of the people of Kenya,
should safeguard the electoral process and ensure that individuals acceded to power in the presidential
oce, only in compliance with the law regarding elections. The foregoing principle, in the Supreme
Court’s perception, dictated that even though the court must uphold the clear popular, electoral
choice, it would hold in reserve the authority, legitimacy and readiness to pronounce on the validity of
the occupancy of the Presidential oce, in case there was any major breach of the electoral law. Such
guiding principles were clear enough, were attended with special merit and they represented the vital
backdrop to Kenya’s electoral law.
18. The precedent-setting decision (the 2013 Raila Odinga case) was distinctly endorsed by subsequent
electoral dispute cases: and it must be regarded as the pillar of the scheme of electoral law in Kenya –
founded upon a benecent interpretation of the Constitution, and of the whole body of electoral law.
The point was consistent with the comparative adjudicatory experience in election matters.
19. The Supreme Court clearly dened the operative electoral law, on the basis of the Raila Odinga
petition of 2013, in the subsequent petitions. The court was scrupulously arming the synchrony of
two express edicts of the Constitution: the rst dening the sovereignty of the people, and the second
delimiting the judicial authority. By article 1(3) of the Constitution, the people’s sovereign power was
partly delegated to the Judiciary and independent tribunals; while article 159(1) of the Constitution,
which constituted the judicial authority was derived from the people and vested in, and should be
exercised by the courts and tribunals established by or under the Constitution.
20. The general guiding path for the disposal of electoral disputes, such as the instant one, was by the design
of the general principles of the electoral system, and of voting, in articles 81 and 86 of the Constitution,
it was envisaged that no electoral malpractice or impropriety would occur that impaired the conduct
of elections. That was the basis for the public expectation that elections were valid until the contrary
was shown.
21. A consideration of the merits of an electoral petition such as the instant one, took one straight back to
the evidence tendered. There was an inseparable link between constitutional principle, and the pillars
of evidence. Since, the petition herein failed on the pillars of evidence, it was clear that the majority
decision lacked validity from the standpoint of governing principles.
22. Evidence was the bearer of tell-tale signs of electoral victory, or of electoral defeat. The physical form of
the ballot was directly visible, and was readily subjected to the test of simplicity, accuracy, veriability,
security, accountability and transparency. The physical evidence was the natural starting point in
ascertaining who had won an election: and hence the majority judgment would have been expected
to begin from a foundation of numerical assessment, before invoking any other parameters. For such
other elements were essentially subjective and were inherently destined to compromise the sovereign
will of the voters which the Constitution expressly safeguarded.
23. Only from such a foundation of the physical vote-count, did one secure a proper viewpoint for the
other dimensions of the electoral process, including the credibility of the entire operation. Indeed,
in view of the relative strength of the evidence emanating from the two sides, the only objective
conclusion would have been that, within the measure of the possible, the conduct of the election by
the IEBC was entirely credible.
24. The emerging principle regarding the initiation of claims by way of election petitions was that all
proof should commence from the foundation of the physical ascertainment of voting records. All
other claims then, must revolve around that pillar and must establish that some gross impropriety had
aected the electoral process, and should lead to its annulment. The court (minority) was constrained
to propose that scheme as a proper agenda for the reform of Kenya’s electoral law. Such legal reform
would need to institute all appropriate security back-ups around the physical records, and would ensure
the establishment of safety-nets around the votes cast.
25. The Constitution, while safeguarding the Judiciary’s adjudicatory space, entrusted certain governance-
spaces to other agencies – primarily the Legislature and the Executive: and that was the basis for
the constitutional principle, separation of powers – a principle the validity of which, in the Kenyan
constitutional order, had not ever been seriously contested. The Judiciary was the trustee of the
people’s sovereign power with regard to the interpretation and application of all the terms of the
Constitution and of all other law. A substantial initiative in the motions of the entire sphere of law,
legality and jurisprudence had been reserved to the courts.
26. Unlike the Judiciary, the work-orbit of which was lined up with laws, principles and jurisprudential
yardsticks, both the Legislature and the Executive in view of their electoral and policy foundations, may
quite properly be described as political agencies. They related to the largest number of Kenyan people,
in a close and direct proximity; they inuenced and were inuenced by the momentary concerns which,
therefore, justied the conception and espousal of policy and politics conceived and executed within
short time-frames. That was in stark contrast with the relationship between the ordinary citizen, and
the courts of law: and if the courts overlooked that reality, it would constitute a groundswell for failure
of judicial responses in line with the professional, juristic remit.
27. The prolonged history of judicialism, in all democratic countries, demonstrated that the proper role of
the courts had been professional, judicial, and founded upon cardinal principles which drew lines of
correctness and propriety in situations of dispute, so as to secure a certain optimum level of safeguards
for the rights of the citizen. Beyond that level of safeguard and fullment, it fell to the political agencies
to pursue constantly, such policy stands as would satisfy, and give fullment to the national populace.
28. On the principles of institutional disposition, it followed that it fell not to the court to make
undue haste in assuming the policy mantle; a stampede was destined not only to disrupt the delicate
institutional balances, but to weaken the reliable jurisprudential bedrock which assured the citizens of
ultimate governance safety-net.
29. The majority on the instant petition had made a precarious move that was destined to prove
detrimental to the dependable setting of relations among essential governance entities – to the
detriment of the rights and legitimate expectations of the citizen. Such a determination was in clear
departure from the state of the evidence. The petitioners’ case rested on just one dimension of the
electoral process – electronic transmission of results. Moreover, the bulk of the assertions made as
regards transmission, were just that, contentions, with only limited testimonial ingredient: it was hardly
evidence.
30. Evidence in the true sense, a set of probative facts, was what came forth from the respondents: and
its tenor and eect was that, there were only limited instances of failure of results-transmission; only
limited cases of irregularity in vote-addition and tabulation, not aecting the ultimate compilation and
summation; the lawful complementary device was put in service, in cases of failure in the transmission
process; all the physical voting records were available, and indeed, had been timeously availed to the
Supreme Court Registry and could have been re-counted, to conrm that the 3rd respondent had been
properly declared as the President-elect. Thus, on basic elements of trial, the essence of the burden of
proof was undischarged and it was in eect a reversal of the conventional process of judicial inquiry
and determination – making a nding in favour of the petitioners.
31. The majority would appear to have taken leave of the juristic obligation to interpret the terms of the
articles of the Constitution invoked by the petitioners; the obligation to break them down, so as to
ascertain the discrete demands of the law; the obligation to consider the pertinence of the specic
statements of evidence from the petitioners, such as would answer to the constitutional and legal
principles invoked.
32. The majority departed, as it would seem, from the placid frame of the juridical setting and assumed
direct responsibility for the immediate calls of policy or politics – by altering the design of momentary,
popular inclinations which were, by the terms of the Constitution, legitimate in all respects. The
damage such as may ow from such a deportment was not yet plain to all as was quite clear from
common perceptions recorded in the media ever since the delivery of the majority judgment.
33. The general perception associated the majority judgment with an overtly political inclination. That was
the judgment’s obvious departure from the professional plane of jurisprudence as the proper platform
of the judicial arm of the State. By the magic jolt of September 1, 2017, general political history would
have been made, even though that represented a departure from the jurisprudence of democratic
systems, which so much cherished the separation of powers, and which so studiously committed the
Judiciary to the professional task of line-drawing to ensure the sustenance of regular safeguards of the
Constitution and the law, for all.
34. In future inquiries, it may be established that the law, as advanced by its interpreters and scholars, had
its anchorage on the adjectival plane, from which it addressed the primary motions of social, economic
and political activity. The law stood to be formulated, molded, interpreted and applied, not for its
own sake and in its own cause, but in relation to the primary motions which preoccupied citizens and
communities. Thus, in the instant case, the electoral process had taken place and its motions had to
be matched to the law as interpreted. By the interpretive scheme of the law, it did not stand the test of
rationality or ecacy to merely allege some unspecied impropriety in the electoral process.
35. The relevant clause of the Constitution must be taken through an analytical process and subjected to
denite categorizations which crystalized the specic concepts and elements said to have been violated.
By that criterion, most of the contentions of the petitioners in the instant case, on account of their
broad generality, would not stand. The interpretive task as it related to the adjectival essence of the
law was inherently professional – and was reected in the concept of jurisprudence, which dealt with
thought about law.
36. The court, in the normal performance of its role under the Constitution, was engaged in the specialized
process of jurisprudence. It followed that the more immediate, urgent and primary motions of basic
policy-making, inherently devolved to the political arms of the State, rather than the more specialized
entity which ws the Judiciary.
37. [Obiter] “The judgment, apart from the occasion it proers for a reection on the law relating to
elections, is a basis for a rethink on law as a concept, and as a professional engagement, dened in
a regulatory framework applicable to the citizens’ primary undertakings. From such a platform, it
emerges that the law’s design in the hands of the judge, the lawyer and the scholar, rests in unity with
the fundamentals of constitutional governance – an important element of which is the independence
of the Judiciary. On the basis of this principle, it is to be recognized that the judge’s proper mandate
lies several removes from the citizen’s momentary policy and political desires and expectations – which
generally devolves to the state’s political agencies. By this perception, the judge’s proper remit has its
focus upon professional engagement, founded upon objective scenarios, or criteria…Such a perception
of law and legal process, in retrospect, will be found to be in conformity with the analytical schemes
that mark the dedicated works of great jurists of the past.”
38. [Obiter] “The special contribution of these judges and law scholars is to light up the orbit of
jurisprudence, as a dedicated sphere of thought, learning and preoccupation, that secures the requisite
motions of the dierent spheres of human activity, while arming the perceptions of integrity and
propriety…Such is the jurisprudential context in which I have considered the petition herein. The
majority decision, in eect, holds that the court may, quite directly, engage the course of national
history – through a precipitate assumption of recurrent policy-making or political inclinations and
mandates. In my considered opinion, judges, where the making of history devolves to them, should
focus their attention in the rst place, upon the intellectual and jurisprudential domain – rather than
upon the workaday motions of general policy and politics which devolve to the citizens themselves,
and to the political agencies of state.”
39. The petition would have been dismissed with costs.
Per SN Ndungu, SCJ
1. The Supreme Court was the rst original, exclusive and nal resort for any party challenging the
election of any person to the Oce of the President. It determined presidential election petitions to
the exclusion of all other courts. That jurisdiction was also limited in time. The Constitution required
one to petition quickly and particularly. That restriction, on extent and time was not without basis.
The parties had to present a clear, concise case supported by cogent evidence. The jurisdiction even
though limited in time and scope, revolved around critical constitutional questions. The requirement
for particularity was therefore important to ensure that the case presented before the court was properly
of.
2. The Supreme Court in discharging its mandate as an election court, remained the precedent-setting
forum in Kenya and its decisions had to be carefully analysed to ensure that a jurisprudential crisis or
confusion did not ensue. Were that to happen, the court would have failed the Constitution and the
people.
3. The Constitution was Kenya‘s guiding order. It had organized Kenya‘s governance character and
infused accountable governance, public service and responsible citizenship. The Judiciary had the
enviable, but extremely dicult and rewarding duty of giving the Constitution comprehensible
interpretation that was stable, consistent, predictable, certain and true to the sovereignty of the people.
Undergirding that sovereignty was the ability of every Kenyan to enjoy his/her full human-character
guaranteed by an elaborate charter on rights. A determination of a dispute akin to the one that was
presented before the Supreme Court could not therefore be mechanically disposed of without paying
due regard not just to the letter or spirit but also the conception of the Constitution itself. At the core
of the Constitution was sovereign will, at the soul of sovereign will were the people and central to the
people were their rights.
4. An election cause was a right-centric cause. At the heart of a petition challenging the results of a
presidential election was the right to vote in free and fair elections. That right was at the epicenter of
Kenya‘s democratic character as a republican state. Interpretation and application of the constitutional
provisions touching on elections had to therefore be read holistically with each provision reinforcing
the other. That approach had been consistently applied by other courts in the region and embedded
in the theory of constitutional interpretation in Kenya’s own jurisdiction.
5. Evidence was the epicenter of any trial. The nature of a presidential election petition did not displace
the basis of the law of evidence outlined in the Law of Evidence Act, section 80 of the Elections
Act, 2011 expressed that among the powers of an election court in exercise of its jurisdiction was:
summoning and swearing in witnesses in the same manner, or as nearly as circumstance admitted, as
in a trial by a court in exercise of its civil jurisdiction. As per article 163(3)(a) of the Constitution, the
proceedings before the Supreme Court, although regulated by the Supreme Court Act, 2012 and the
attendant Presidential Election Petition Rules, 2017allowed reliance on adavit evidence. In order for
that evidence to bear cogent value, it had to meet the demands of proof.
6. The Supreme Court‘s role in exercise of its exclusive original jurisdiction ought to be thorough in fact-
nding and interpretation of the Constitution and the law. In cases of factual prerequisite such as the
petition, interpretation of the law devoid of complete and exhaustive factual examination was by itself,
an insucient basis upon which to make the nal determination contemplated under article 140(2)
of the Constitution. The evidence adduced had to be clear to show that what was declared was not
the result.
7. Electoral processes had assumed a fair presumption of correctness. To rebut the presumption required
proof to a high degree that the resulting declaration was not trustworthy. That was drawn from the
democratic legitimacy accorded to elections by the Constitution. The test of invalidating an election
had to be a clear one. A new election ought to be conducted only when voters had been completely
prevented from accurately registering their intended preference in numbers sucient to aect the
outcome. A determination to hold a fresh election in terms of article 140(3) of the Constitution should
only be made if the following questions were considered, analysed and determined conclusively:
a. Was the nal outcome of the election the result of fraud, mistake or omission which precluded
the certied vote total from correctly aggregating all voters independent, non-coerced and non-
procured preferences?
b. Is the outcome incapable of being trusted to reect the will of the people?
c. Can a reliable outcome be determined in a manner other than holding a fresh election?
8. The right to vote in free and fair elections was violated when a court, without comprehensive
understanding and analyzing of the evidence displaced the electorate by halting an election and
deciding the outcome itself. An election, unless clearly proven to have been conducted in gross
violation of the Constitution and the law, aecting the ultimate outcome, must never be taken away
from the voters. The electorate, by dint of article 1 of the Constitution were entitled to be represented
by men and women of their choice. In resolving electoral disputes, the Judiciary must set upon that
duty as a judicial and not a political actor. In so doing, its guiding force must be proper exercise of
judicial authority granted under article 159 of the Constitution. It must consider rights not form.
9. The majority based their decision on an interpretation of section 83 of the Elections Act and in
doing so they had read-in the provisions of articles 81 and 86 of the Constitution. They stated that
the electoral process had not met the requirements as listed in those articles. That was a narrow
and restrictive interpretation of the law. The majority in doing so, limited itself to operational and
aspirational constitutional principles but failed to address the substratum of the issue at hand, the
grund norm of the Constitution, the sovereignty of the people and the centrality of the people in the
entire architecture of the Constitution of Kenya, 2010, but secondly used a restrictive test in assessing
whether a claim that the right to vote had been violated in any way had been made.
10. In interpreting and applying any provision of the Constitution, the Elections Act and Regulations,
the Supreme Court must adopt an interpretation that promoted the grund norm in article 1 and the
right to vote in article 38 of the Constitution.
11. Articles 81 and 86 of the Constitution reinforced the right to vote elaborated under article 38 of the
Constitution. Those constitutional provisions had to therefore be applied to the core right and not vice
versa. Articles 81 and 86 were to be facilitative of the fundamental rights under article 38, in addition
to other provisions of the Constitution. In fact, there were many other articles of the Constitution,
legislation and regulations whose purpose was intended to give eect to, facilitate and support the right
to vote as provided for under article 38. In the application and implementation of those provisions,
the centrality of article 38 as the primary purpose for their existence must never be lost.
12. A reading of the majority decision appeared to presume that the only test for ascertaining the credibility
of the election process, or more correctly for assessing any violation of the rights under article 38 of the
Constitution, lay in articles 81 and 86 of the Constitution. That was not the case. Articles 82 and 83 of
the Constitution also went to the specics of the electoral process that supported the right under article
38. Article 82 and 83 addressed the registration of voters and article 83 underlined the requirements
of the voting exercise itself as simple, accurate, and taking into account those with special needs.
13. Article 83(3) of the Constitution provided that administrative arrangements for the registration of
voters and the conduct of elections had to be designed to facilitate and would not deny, an eligible
citizen the rights to vote or stand for election. The upshot being that the test for assessing a violation
claim under article 38 of the Constitution had to be more comprehensive than the aspirational
guidelines set under articles 81 and 86 of the Constitution. Cherry-picking constitutional provisions
to determine a right-centric cause on the basis of formal considerations the choice of form over rights
undermined a purposive approach to the interpretation and application of the Constitution.
14. The Constitution in article 259(1) displayed the framework of applicable principles while interpreting
the Constitution. Further the Constitution provided under article 20(3)(a) and (b) that in applying a
provision of the Bill of Rights, a court had to develop the law to the extent that it did not give eect to
a right or fundamental freedom and adopt the interpretation that most favored the enforcement of a
right or fundamental freedom. The majority in the petition had not given eect to the people‘s right
to franchise and had not interpreted the Constitution broadly and in a manner that most favored its
enforcement. The case for the advancement of the Bill of Rights had to therefore be at the forefront
of any judicial determination under the Constitution.
15. Even if there could have been a perception that a competing rights situation existed between articles
38, 81 and 86 of the Constitution there had to be a balancing and an application of proportionality
to eect a judicial outcome that served the dictates of the Constitution. One had to recognize that not
all claims would be equal before the law. Some claims were aorded a higher legal status and greater
protection than others.
16. While there were many situations in which rights, principles and values could seem to conict or
compete when evaluating situations of competing rights, human rights, especially those provided
in the Bill of Rights would usually hold a higher status than principles and values. That rationale
was underlined by the architecture of the Constitution, which actually ring-fenced the Bill of Rights
from amendment which could be made only through referendum by the people of Kenya unlike the
principles in article 81 and 86 of the Constitution which could be amended by elected leaders in
Parliament. That plebiscite protection in itself placed the Bill of Rights higher in the pecking order of
competing provisions in the Constitution. The principle therefore should complement the right not
vice versa.
17. The principles in article 81 and 86 of the Constitution could not trump the fundamental rights
as provided for under article 38 of the Constitution and certainly they could not undermine the
provisions of article 1 of the Constitution on the sovereignty of the people. Further, they ought not
compete with all international treaties that provided and protected the right to vote and to which
Kenya was a signatory and which were part and parcel of Kenya’s constitutional order under article 2.
18. Fundamental rights constituted the foundation of any Constitution and any accompanying values and
principles were to be complementary and not to detract from the Constitution. The rights in article
38 of the Constitution remained central to any election cause and it was a claim of the violation of
those rights that ought to take center-stage in such a cause and not the form that accompanied it in
the periphery.
19. The collectivity and interlocking nature of constitutional provisions in the scheme of rights, values,
principles and administrative directives were infused into the Elections Act and Regulations and in
determining claims of commission or omission in electoral disputes, a court had to consider:
a. The nature of the commission or omission, in general.
b. The source of such omission or commission.
c. Foreseeability and mitigation, that was, whether the commission or omission could be foretold
were there to be steps to avert it.
d. The eect of the commission or omission on a right, a duty or the consequence of a duty
thereof such as eect upon the result of an election.
e. The eect of the commission or omission on the individual and the collective.
f. Possible remedies and directions.
20. Article 86 of the Constitution provided a strict quantitative language regulating voting at an election.
The article required the voting method employed to be simple, accurate, veriable, secure, accountable
and transparent. The petitioners’ claim was that the results from the polling stations, the CTCs could
not be veried by their agents at the NTC. The process of verication was not a two-step process.
Verication in a presidential election was a continuous process traceable from the date of registration
of voters to the determination of a presidential election petition in an election court. In other words,
the plurality of persons engaged in the conduct of an election, including the ultimate determination
of that election‘s validity, were all agents of verication in ascertaining the credibility of an election. To
examine the integrity of the election, the election court was obliged to consider all the relevant steps
of the verication process.
21. Section 6 of the Elections Act mandated the IEBC to avail the register of voters to be inspected by the
public at all times for purposes of rectifying the particulars therein. Verication of one’s registration
details, including biometric data, was therefore a critical part of verication essential to the conduct of
an election and enjoyment of the right to vote. The IEBC was also mandated to open the register for
inspection by the public, ninety days from the date of the notice of a general election. That assured
the public of the correctness of the registration details entered into the register and guaranteed certain
key components of the right to vote under article 38. That process was undertaken in the months of
May and June, 2017.
22. Kenya’s electoral system was instituted on the basis of multi-party democracy founded on the national
values and principles outlined under article 10 of the Constitution. The general principles of the
electoral system and the interlocking constitutional provisions, including article 81 were engaged in an
exercise of sovereign guardianship. Therefore, the Supreme Court by dint of its jurisdiction was the
nal verifying agency, if called upon to do so, in a presidential election petition. That duty was enabled
by the Supreme Court’s inherent powers as an election court to order; -
a. scrutiny;
b. recount;
c. re-tally;
d. discovery of documents;
e. inspection of ballots; and
f. orders that facilitated the court to establish the people‘s sovereign will.
23. The court had to give full weight to the constitutional commitment to free and fair elections and the
safeguard it provided of the right and ability of all who so wished to oer themselves for election to
public oce. It was essential to hold the IEBC to the high standards that its constitutional duties
imposed upon it. It was insucient for the court to say that it had doubted, or had a feeling of disquiet,
or was uncomfortable about the freedom and fairness of the election. It had to be satised on all the
evidence placed before it that there were real not speculative or imaginary grounds for concluding that
the elections were not free and fair.
24. The preservation of election material for a period of three years was also an enabler of the verication
process. In cases where a court was in grave doubt as to the outcome of the election, as the majority
in the case decided they were, the ballots existed to enable a nal inspection/verication process by an
election court. The people spoke through the ballot and the ballots, once marked and cast, in turn,
spoke for themselves anonymous of the voter, preserving the principle of secrecy under article 38 (3)
(b) of the Constitution.
25. Verication was an exercise that comprised the entire electoral process commencing from registration
of voters, inspection of the voters register, verication of registration, verication of an elector’s details
where the electronic identication failed, audit of the register, identication of voters, presence of
candidates, agents, accredited observers and media, the process of counting and the limited right of
recount, signing the declaration forms and the entitlement of candidates or agents to a copy, displaying
the declaration of results for access by the public, sealing of ballot boxes and handing over of election
materials, the tallying process and the right to challenge the declaration of results in an election court.
All those processes activated several inbuilt principles of the electoral system under article 81 of the
Constitution. They also provided an opportunity for electoral quality assurance. The hierarchy was
that any shortfalls in the preceding process could be detected in a consequent process forming a basis
for a pre-election or post-election dispute.
26. A proper test for verication of an electoral process must always prioritize the primary instrument for
declaration of the result or outcome of the voters’ choice. The voter was identied at the polling station,
he voted at the polling station, ballots were counted at the polling station. The agents, candidates,
observers were allowed access into the polling stations to verify the inner sanctum of the voice of the
electorate, the altar of the voter’s choice. What happened there was what determined the parameters
of verication. Any doubt as to the credibility or integrity of the election had to be tested against the
various layers of verication, including the election material in the custody of the returning ocer.
A single want of form in the elaborate scheme of verication could not be a basis for nullifying a
presidential election.
27. The electoral process was conducted in accordance with the directions of the Court of Appeal in the
Maina Kiai case. Processes that had been put in place before the determination by the Court of Appeal
declaring section 39(2) and (3) of the Elections Act, 2011 and regulation 87(2)(c) of the Elections
(General) Regulations, 2012 unconstitutional were adjusted to; -
a. eliminate provisional results; and
b. adjust Form 34C to reect a collation of Forms 34B from the constituency returning ocers
who had veried and tabulated the nal results from the polling stations in Forms 34A.
28. The declaration by the 2nd respondent of the results of the election per county was in keeping with the
constitutional requirement that the candidate declared elected as President received at least twenty-ve
per cent of the votes cast in each of more than half of the counties.
29. The Maina Kiai decision, delivered on June 23, 2017, 35 days prior to the conduct of the presidential
election in August, 2017, was denitive of the status of the law at that time. As such, the 1st and 2nd
respondent’s adherence to those guidelines was an answer to the duty in article 10 of the Constitution,
binding all State organs and State ocers to the national values and principles, in the case, the rule of
law, whenever any of them such as the 1st and 2nd respondents applied or interpreted the Constitution,
enacted, applied or interpreted any law; or made or implemented public policy decisions. The only
challenge was that the system of data transmission from the polling station to the NTC had already
been set up.
30. The case of Maina Kiai, though in many respects was similar to Hassan Ali Joho & another v Suleiman
Said Shahbal and others [2013] eKLR, Supreme Court Petition No 10 of 2013; the (Joho case), was a
play of dierent legal and constitutional provisions. While the Joho case interrogated the plurality of
declaration processes for a gubernatorial election, a three-tier election with no requirement of a county
or national threshold, the MainaKiai case addressed itself to the declaration processes in a presidential
election; a two-tier election process under article 138(3)(c) of the Constitution with a mandatory
national and county threshold under article 138(4)(a) and (b), and a dened mode of declaration under
article 138(10)(a). The two cases were in dierent electoral law amendment periods. The foregoing
aspects therefore signaled an imperative to distinguish Joho from the Maina Kiai case.
31. The polling station was the true locus for the free exercise of the voter’s will and once the counting of
votes as elaborated in the Elections Act, 2011 and Regulations thereunder, with its open, transparent
and participatory character using the ballot as the primary material meant, as it had to, that the count
there was clothed with nality not to be exposed to any risk of variation or subversion. Consequently,
the concept of provisional results did not exist in Kenya’s constitutional electoral practice. As such, the
Supreme Court upheld the determination by the Court of Appeal in the Maina Kiai case that sections
39(2) and (3) of the Elections Act, 2011 were inconsistent with the Constitution and to that extent,
null and void. However, the judge departed from the decision by the appellate court to the extent that; -
a. it endorsed another layer of tallying and verication of the result of the presidential vote in the
form of the CTC; and
b. incapacitated the chairperson of the IEBC, an integral part of the declaration process in a
presidential election, from verifying the polling results.
32. The word "declared" in article 180(4) of the Constitution (in the petition, article 138), had been used
to depict the nality culminating in the declaration of the winner of an election. Article 138(3)(c) of
the Constitution was the pace setter of the declaration process. It called on the IEBC to tally and verify
the count before declaring the result. That formula was in terms of article 86(a) of the Constitution,
simple, veriable, transparent and accountable. Article 138(3)(c) eliminated the need for the polling
results in a presidential election to be tallied at the CTC before being declared. Presidential election
results were declared at the NTC by the chairperson of the IEBC. Before that declaration could be
made, several things had to be done; -
a. the polling results had to be tallied - article 138(3)(c);
b. the count had to be veried - article 138(3)(c);
c. the national threshold had to be met - article 138(4)(a); and
d. the county threshold had to be met - article 138(2)(c).
33. The prerequisites could only be done at the NTC by the chairperson of the IEBC who was also the
person who was to return the results of the presidential election in accordance with the Constitution.
34. Whilst it was the case that the role of the returning ocer was indispensable to the election process, it
was the case that he/she, in fullling that role, was a creature of statute and was bound by the terms
of the express legislative provisions. Accordingly, in the performance of his/her duties and functions
he/she had to be guided by the principles laid down in such legislation, within which was set out the
framework where those whose names were validly on the register of electors could give eect to the
franchise vested in them.
35. The returning ocer must not exceed the limits of the competence so conferred on him, he was
therefore conned to what could legitimately be extracted from the provisions in issue, either by way
of express conferment or necessary intendment. He could not operate in excess of those limitations. He
could not, for example, justify any act or action, however desirable his intentions could be, based on any
form of inherent power for the simple reason that his oce was not amenable to attract competence in
that way. When an occasion arose it would therefore become a matter of statutory interpretation as to
whether or not the act or omission complained of was within the competence of his oce to perform.
36. Ordinarily a question regarding the interpretation or application of the Constitution could arise from
a multiplicity of factors and interrelationships in the various facets of the law. Consequently, the
Constitution should be interpreted broadly and liberally, so as to capture the principles and values
embodied in it. Therefore article 138 of the Constitution had to be interpreted liberally and in a
manner that none of its sub-articles would strike down the other.
37. Although the petitioners’ expert witness on cyber security outlined the six principles which the
transmission systems and database ought to have been tested against, the source of that opinion was not
provided. Sucient evidence to prove the link between those principles, the imperatives of electoral
conduct and elaborate omission by the 1st respondent, supported by any evidence, was not provided.
Experts, when admitted before the court in person or by deposition, would have a primary function to
educate the court in the technology they would come as teachers, as makers of the mantle for the court
to don. Further, as a practical matter a well-constructed expert report containing opinion evidence
would set out the opinion and the reasons for it. If the reasons stood up the opinion did, if not, then
the opinion would not.
38. Article 86 of the Constitution lay down the parameters of voting in furtherance of the right to vote
in free and fair elections pursuant to article 38 of the Constitution. The system of voting ought to
be simple, accurate, veriable, secure, accountable and transparent. It was peculiar that with regard to
voting, article 86 did not make any direct reference to transmission of the election results. However,
transmission was an integral part of the electoral process. It was the mode through which the results
left the polling station to the CTC and the NTC. In order to enable voting and give full eect to the
right to vote, appropriate structures had to be set up. According to article 86(d), those structures and
mechanisms ought to eliminate electoral malpractice. The KIEMS system was one such mechanism.
39. Upon signing Form 34A and ensuring the same was signed by the agents of the candidates present
in the polling station, the presiding ocer manually input the results and the scanned form in the
designated electronic kit and electronically transmitted the results to the constituency, county and
national tallying centres. The KIEMS kit applied for that purpose required 3G or 4G network in order
to transmit the results. In the areas where that nature of network was not available, the presiding ocer
would have been required to move to an area where that network was available in order to electronically
transmit the results. A copy of the form containing the declared results was also to be pinned on the
door of the polling station.
40. The counting of the votes and the declaration of the results at the polling station was manual but
the transmission was electronic. Nonetheless, by dint of section 44A of the Elections Act, 2011, if
the electronic transmission of the results failed then the presiding ocer was to revert back to the
manual system of transmission in which case he would have to physically deliver the Form 34A to the
constituency returning ocer.
41. Kenya’s electoral process could not be said to be purely electronic. It comprised of both manual
and electronic components. It was a rather ugly grouchy and reluctant mongrel of two very distinct
processes. In fact, it was a largely manual system. It was therefore very distinct from electronic electoral
processes exhibited in foreign jurisdictions such as India, Australia, the United States of America,
Canada, and Brazil among others.
42. In Kenya, the system of voting was partly manual and partly electronic with the option of reverting
to the manual processes should the electronic processes fail. However, the counting of votes, tallying,
collation and verication of the results was entirely manual. An interpretation of section 44A of the
Elections Act was incomplete without due consideration to article 38 and 86(d) of the Constitution
and section 39 and 44 of the Elections Act. The High Court considered it only in light of section 44
advancing an incomplete conclusion.
43. Section 39(1)(C) of the Elections Act had mandated that for purposes of a presidential election, the
IEBC would electronically transmit, in the prescribed form, the tabulated results of an election for the
President from a polling station to the CTC. Technology, however, per section 44 of the Elections Act
was used subject to the provisions of the entire section, meaning that there were prerequisites to be
met before technology could be employed. Parliament was keen to introduce conditions preceding the
use of technology in elections. The conditions were in-built in the provision as follows:
a. A policy for progressive use of technology in the electoral process (section 44(2)).
b. The technology would be simple, accurate, veriable, secure, accountable and transparent
(section 44(3) which was in terms of article 86(a) of the Constitution)
c. In an open and transparent manner, procure the technology at least 120 days before such
elections.
d. Deploy the technology at least sixty days before a general election.
e. Enact regulations in consultation with relevant agencies, institutions, stakeholders, including
political parties for the aspects listed under section 44 (5) (a-j).
f. Technology shall be restricted to voter registration, identication and results transmission
g. Establish a technical committee to oversee the adoption of technology and its implementation
for the conduct of the general elections.
44. The use of technology was progressive. Electronic technology had not provided perfect solutions.
Such technology had been inherently undependable and its adoption and application had been only
incremental over time. It was not surprising that the applicable law had entrusted discretion to IEBC
on the application of such technology as could be found appropriate. Since such technology had not
yet achieved a level of reliability, it could not as yet have been considered a permanent or irreversible
foundation for the conduct of the electoral process. It negated the petitioner’s contention that, in the
instant case, injustice or illegality in the conduct of election would result if IEBC did not consistently
employ electronic technology. The petitioner’s case, insofar as it attributed nullity to the presidential
election on grounds of failed technological devices, was not sustainable.
45. The Constitution and the entire electoral code enliven the mechanism, the manual identication of
voters and manual transmission of results in the prescribed instruments of transmission, veriable by
various agents including an election court using election material expressly referenced under article
86(d) of the Constitution and dened under section 2 of the Elections Act. The essence of the
section was to save the sovereign will of the people from the unpredictable nature of technology
and to introduce a layer of veriability to the electoral process. Parliament was clear, by the terms of
section 44A of the Elections Act that the complementary mechanism which existed as the manual
system of result transmission in the prescribed instruments of declaration and whose nality was only
questionable before an election court was sucient to deliver a presidential election, as happened in
areas where there was no 3G or 4G network coverage.
46. The public nature of elections required that all essential steps in the elections were subject to
examinability, unless other constitutional interests justied an exception. The examination ought to
be possible, by the voter/public, without special expert knowledge. Therefore, the voter in Kenya
understood the function of the ballot and the critical importance of entries in the statutory Forms
34A, 34B and 34C. Election results were displayed in the relevant forms after the close of polling for
all to see and scrutinize. Any mechanism that purported to complicate the simplicity was at variance
with the Constitution. Technology reinforced the ecient and fast translation of the will of the people
into an ascertainable return. It however did not supplant the critical primary instrument-form 34A
generated at the primary locus of the election and challengeable only in a court of law.
47. The claim of a consistent variance of 11% between the results for the 3rd respondent and the 1st
petitioner was not proved. Having determined that failure of technology could not supplant the will of
the people recorded in veriable ballots and other election material and the results declared in available,
ascertainable, unchallenged and proper statutory instruments of declaration, the petitioners’ case to
have excluded results from 11,000 polling stations which were out of 3G and 4G network would be
an aront to the Constitution and the right to franchise.
48. In accordance with article 138(4) of the Constitution, a candidate would be declared elected as
President if the candidate had received more than half of all the votes cast in the election; and at least
twenty-ve per cent of the votes cast in each of more than half of the counties. That meant that in
order for a candidate to be declared President-elect, he/she ought to receive more than fty (50) per
cent of the votes cast in the election, or what had been commonly referred to as the threshold of 50
plus 1. If no candidate met the threshold, then fresh elections ought to be held at which only the two
candidates with the highest number of votes in the rst round would participate. In the second round,
it was the candidate who received the largest number of votes or a simple majority, who would be
declared President-elect. Therefore, percentage point played a critical role in determining the winner
of a presidential election in the rst round and whether there would be a second round of elections.
Consequently, any factor that would aect the percentage of votes attained by a candidate needed to
be addressed.
49. A non-compliant ballot paper yielded a rejected vote which was invalid and therefore conferred no
advantage upon any candidate. Due to its numerical inconsequence on any candidate’s nal tally, it
should not be considered while computing the nal percentage outcomes in a presidential election.
50. Although the Constitution did not dene the term cast, the Black’s Law dictionary dened "cast ‘as "to
formally deposit (a ballot) or signal one’s choice. Therefore, the act of a voter secretly marking his/her
ballot paper by putting a cross, a tick, thumbprint or any other mark in the box and column provided
for that purpose against the name and the symbol of the candidate for whom the voter wished to vote,
constituted, a vote. However, that vote only counted to the nal computation and was deemed cast, if
the elector complied with the applicable standards elaborated under the Constitution and the electoral
law and regulations.
51. In certain instances, at the time the voter placed his/her marked ballot paper in the ballot box, it
remained a ballot that could be rejected unless the voter had satised the requirements necessary to
render their intention, a vote cast. The ballot paper however bore a mark against the name and symbol
of the person whom the voter wished to vote. The process of marking the ballot paper was therefore
an expression of the voter’s wish/will to elect a particular candidate. That act, alongside other enabling
electoral processes such as voter registration comprised the voter’s exercise of his/her political rights in
line with article 38(2) of the Constitution.
52. In order for a ballot to translate into a veriable vote (a vote cast), it had to be clear in whose favour
the vote was cast without identifying the voter. Meaning, that a vote was cast only when a presiding
ocer, during counting, declared that the intention of the voter was clear and that the vote was made
in favour of a particular candidate. The intention of the voter in a voting process that was by secret
ballot was a core component of an individual’s political right pursuant to article 38 of the Constitution.
Therefore, spoilt ballots did not constitute votes eligible to be included in the tally of the nal results
in a presidential election.
53. Rejected ballots in accordance with regulations 77 and 78 of the Elections (General) Regulations,
2012 were void and were not counted unless in terms of regulation 77(2). Viewed purposively it could
be concluded that regulations 2,69,70,71,77 and 78 of the Elections (General) Regulations, 2012
excluded rejected ballots from the total votes cast which were considered for purposes of computing
the nal results in a presidential election
54. The petitioners’ logic collectivizing all votes as cast and therefore applicable in computing the nal
results of a presidential election did not distinguish the presidential election from other elections
held on the same day. That reasoning accepted that stray ballots also ought to form part of the votes
considered in computing the nal percentages. A stray ballot paper meant a ballot paper cast in the
wrong ballot box.
55. If any ballot for another election, for instance, Senate or Gubernatorial was placed in the presidential
ballot box, then that vote was not cast in the presidential election. It was for all intents and purposes, a
foreign object that could not be considered a vote cast in that election. Consequently, it could not be
taken into account when considering the total number of votes cast in that election. Rejected ballots
belonged to no candidate. That however, was not to understate the statistical need to record rejected
ballots. Such statistics could be helpful in assessing voter turnout and also acting as a barometer for
evaluating civic education programs for voters.
56. In an election petition, the burden of proof at the very onset lay on the petitioner to prove the facts
that he alleged. Once the petitioner discharged that, burden it shifted to the respondent(s) to rebut
the claims made.
57. The court elaborated on the distinction between the legal burden and the evidentiary burden, noting
that the legal burden was the initial burden on the petitioner to prove the facts pleaded in the petition.
Once the petitioner discharged that legal burden to the standard required, then the burden shifted to
the respondent to disprove those claims; that being the evidentiary burden.
58. The petitioner had to discharge the initial legal burden for the 1st respondent to be under the
evidentiary burden with respect to the register and the declared results. The evidential burden
regarding the contents of the register and declared results lay on the IEBC; save that, that burden was
activated, in an election petition only when the initial legal burden had been discharged.
59. The petitioner must discharge the burden of proof in order to succeed in their pursuit to invalidate
the declared results. The petitioner was not only required to prove that the irregularity was committed
but also that the irregularity materially aected the election result. Section 83 of the Elections Act,
2011, specically required that no election would be declared void by reason of non-compliance with
written law if it appeared that the election was conducted in accordance with the Constitution and
with written law or that the non-compliance did not aect the result of the election.
60. Where a claim of electoral malpractice was made, the standard of proof was one above a balance of
probabilities but below beyond reasonable doubt. Where a claim of commission of an election oence
was made, the standard of proof was similar to that in a criminal matter, which was beyond reasonable
doubt. Where the claim related to data-specic electoral requirements, the standard of proof was also
beyond reasonable doubt.
61. Where the petitioner assailed the declared results on the allegation that the returned candidate
committed election oences it was imperative for the petitioner to prove beyond reasonable doubt that
the returned candidate or his agents working under his instructions committed the alleged oence.
Where an election oence was alleged in an election petition, the standard of proof was beyond
reasonable doubt similar to that in criminal matters due to the quasi-criminal nature of the cause.
62. With regard to the allegation that the Cabinet Secretaries committed the alleged electoral oences, the
petitioners were required to show rstly that the oences were committed and that secondly, they were
acting under the instructions of the 3rd respondent. They had to show the nexus between the person
who was alleged to have committed the oence and the returned candidate and they should have shown
the full particulars of the allegation.
63. Where a petitioner imputed electoral oences on the part of the returned candidate, the burden of
proof lay on the petitioner to prove the commission of the electoral oences by the returned candidate
or by his agents or by other persons with his consent, which claim had to be supported by cogent
evidence, bare allegations, without more, that the oence was committed would not suce. If the
evidence supplied failed to meet the set standard the petition had to fail.
64. The law was clear that cabinet secretaries were exempt from the prohibition that public ocers should
not engage in the activities of a political nature and for good reason. Cabinet secretaries and county
executives’ members served at the pleasure of either the President or Governor. They were political
appointees with the express purpose of delivering the manifesto of their appointing authority or
political party. That was an essential part of a political Government in any democracy. A change in the
presidency signaled the immediate resignation or replacement of the political appointees not so with
the rest of the civil service whose tenure was protected against the vagaries of politics. That was why
civil servants did not and should not participate in active politics as they should remain apolitical.
65. There was need by major stakeholders, in a process such as the one forming the subject matter of
the instant petition (the presidential election), to gain access to all the relevant documents containing
all the material facts relating to the process. Therefore, the need for the petitioners to get all the
relevant forms from the 1st respondent was completely justiable. However, the 1st respondents had
been tasked with an immense constitutional mandate to conduct six elections on the same day which
ran concurrently. Though that was humanly possible it was a daunting task to count, tally and verify
the results of all the six elections and more specically the presidential election within the constitutional
timeline of seven (7) days from the date of the election.
66. One could not lose sight of the fact that the IEBC’s ocials had been working round the clock during
the election period, therefore the reduced eciency that ordinarily came with long working hours and
lethargy was inevitable irrespective of a person‘s will power to eciently accomplish such a sacrosanct
process that normally came once in every ve years. The performance by the IEBC and availing all the
Forms 34B to the public and to the petitioners within 4 days of the declaration was commendable in
view of the fact that the KIEMS system was being used by the 1st respondent for the rst time. The delay
by the IEBC of about four days to supply the petitioners with the Forms 34A could not be construed
to be completely unwarranted under the circumstances.
67. If after the presidential election results had been declared, a person was desirous of accessing the
prescribed declaration forms relating to the presidential election which the law did not expressly
stipulate were to be availed to a party, such a party should seek access to such forms through the court.
68. The petitioner in most of the allegations made did not discharge the onus of proof on them. In
that regard the burden did not shift to the respondent to counter the allegations since they bore
reinforcement by cogent evidence. In the instances in which the petitioners did discharge the burden,
the respondents suciently supplied cogent evidence in rebuttal. On the other hand where the
respondents admitted the allegations such as those of administrative errors credible evidence was
supplied to prove that the errors did not materially aect the results and they were not in favour of
any particular candidate.
69. The terms of the court‘s orders were met to the best extent possible. Although the parties diered on
the interpretation of the orders, they were very clear and free from misconstruction. The orders were
of access to information and read-only access which included copying if necessary. The court‘s orders
were very clear, they were also very distinct from the prayers originally sought in the application. The
court took the concerns of all the parties into consideration before making a determination on the
application. Any inference into the intent or assumed order of the court could not therefore be left
to ourish.
70. The basic principles applicable to construing documents, applied to the construction of a court‘s
judgment or order. The court‘s intention was to be ascertained primarily from the language of the
judgment or order as construed according to the usual, well-known rules. As in the case of a document,
the judgment or order and the court‘s reasons for giving it, must be read as a whole in order to ascertain
its intention. If on such a reading, the meaning of the judgment or order was clear and unambiguous,
no extrinsic fact or evidence was admissible to contradict, vary, qualify, or supplement it.
71. The IEBC was an independent constitutional body with the powers to regulate vital procedures such
as the deployment of technology in elections. Although the petitioners prayed for unfettered access
into the servers, the court, in consideration of the security concerns and in line with principles of justice
and equity did not grant that but granted only specic limited orders to information, which were met.
The Supreme Court did not give orders for the petitioner to access the servers of the 1st respondent,
what was given was access to particular read only information. The location of servers, the entry and
penetration into the servers, were not part of the orders given. It would have been dangerous to expose
the IEBC to any administrative incapacity in the future. The court had a responsibility to preserve the
working systems of the IEBC for future elections.
72. The 1st and 2nd respondents were not in contempt of the Supreme Court‘s orders and there was no
basis to nullify the presidential election on the basis of any information revealed or otherwise in the
Report. The allegations of inconsistency in Forms 34A and 34B was veriable using the existing paper-
trail which was also in the possession of the petitioner having requested the court vide a letter dated
August 23, 2017 and the entire set of primary records provided in scanned form on August 24, 2017.
As such an order for nullication based on that exercise that was merely based on controvertible and
speculative grounds, and was well below the standards set for nullifying an election, especially, where
other remedies, such as inspection of ballots, existed.
73. The majority did not address themselves to any other evidence in arriving at their determination, had
they systematically analysed the evidence, they would not have determined the election on a tangential
issue whose determination could easily have been settled through reference, by the court itself, to the
evidence deposited by the 1st respondent 48 hours after ling the petition.
74. The Supreme Court consistently applied the test in section 83 with the result of the election in mind.
The qualitative component (the result of an election) was an integral element of election causes. In
a Presidential election Petition, the Petitioner challenges the election of the President-elect under
article 140(1). The result of the election of the President by Constitutional requirement could only
be ascertained when the formula under article 138(4) of the Constitution has been met. Anyone
challenging an election had to therefore challenge both the quantitative and qualitative aspects of the
election.
75. The constitutional threshold in a presidential election was anchored on the numbers and the formula.
The drafters of the Constitution were very clear that Kenyans ought to elect, as President, a person who
was acceptable to more than half of the voters in Kenya and one supported by at least 25% of the votes
cast in each of more than half the counties. It was only such a person who had garnered that percentage
threshold in terms of popular support that was to be declared elected as President. That was one of
the irreducible minimums for a transformative change in Kenya‘s electoral architecture. There was a
purpose to that formula, the need for national cohesion, a unifying personality and a nationally popular
individual. In a petition relating to such an election, an election court had to therefore ascertain that
any question as to the quality of the election had aected the constitutional quantitative threshold.
76. The legal position was that election results would be upheld unless it had been proved in court that
the irregularities or illegalities changed the result of an election or made it impossible to determine the
will of the electorate. The upshot was that the alleged illegalities or irregularities ought to have had a
nexus with the declared result.
77. The decisions of the Supreme Court triggered various processes in legal reform or the constitutional
performance of institutional mandate. Therefore, a critical aspect of precedent was to preserve the
certainty and predictability of the law. Although the doctrine of precedent did not stand in the way
of progressive interpretation of the law, that power must be used in a sparing and cautious manner
to guarantee continuity, certainty and adaptability. Those three aspects had to however be balanced
with the requirement that justice be done. Judicial guidance was an integral part of directing people’s
relations. That critical aspect was wasted if it became impossible to direct actions appropriately when
similar facts and circumstances were subjected to dierent standards of the law.
78. Section 3 of the Supreme Court Act and the body of jurisprudence from the Supreme Court was
central on the preservation, protection and armation of the Constitution. The framers of the
Constitution were fully aware that the Supreme Court was the only court that could reverse itself as
it was not bound by its own decisions. However, considerations for reversal or departure had to be
carefully weighed against various considerations. Departure from electoral jurisprudence was inviting
of an even rmer and higher restraint from departure of well-settled principles. The Judiciary was one
of several critical institutions that acted as anchors to the Constitution. The others were the people, the
Executive, the Legislature, independent commissions, State oces and ocers. All those institutions
interacted with the law and with each other in a manner that was clear, certain, stable and predictable.
A dierent approach would threaten the fabric of institutional legal interaction. The law was a primary
limb of the body politic.
79. A judge stood before a dilemma to follow precedent previously determined by his court, or deviate
from it. The judge must use his discretion reasonably. The reasonableness test required the judge
to consider on the one hand all considerations supporting the honoring and following of the
precedent. On the other hand the judge must consider the full scope of considerations pointing toward
deviation from precedent and choosing new law. The judge must assign each one of those systems of
considerations its proper weight. Having done that, the judge must place both on the scale. The judge
must choose the prevailing ruling, the judge must choose the ruling whose utility was greater than
the damage caused by it. The guiding principle should be that: it was appropriate to deviate from a
previous precedent if the new precedent’s contribution to the bridging of the gap between law and
society and to the protection of the Constitution and its values after setting o the damage caused
by the change was greater than the contribution of the previous precedent to the realisation of those
goals. Deviation from precedent, particularly precedent of the highest court was a serious matter, great
sensitivity was needed to weigh all the considerations.
80. Although the Supreme Court was not bound by its decisions and could review or depart from them,
such considerations only ought to be in the clearest of cases, and distinguishable in fact, circumstances
and relevance. The majority had failed that critical test. The value of their deviation from precedent
damaged more than it oered utility. It would cause damage to the legal system because it turned the
entire electoral jurisprudence on its head.
81. Every arm of Government had the unique role of defending the Constitution, the Bill or Rights and the
sovereignty of the people. The essence of a system of checks and balances was to ensure that when one
constitutional branch threatened the entire schematic ordering of the Constitution and the State, the
other was ready to check those actions. Having been part of the inaugural Supreme Court and having
steadily and consistently settled the law on elections, the interpretation of section 83 of the Elections
Act by the majority would unleash jurisprudential confusion never before witnessed. Unfortunately,
Kenya was part of the common law system, encumbered by rules requiring lower courts to pay due
deference to the courts above. Parliament must therefore untie the hands of courts below by clarifying
the meaning of section 83. That was the only way that Kenya could avert a crisis of jurisprudence in
such a sensitive area of law as elections.
82. The Supreme Court could not roll over the dened range of the electoral process like a colossus.
The court must take care not to usurp the jurisdiction of the lower courts in electoral disputes. The
annulment of a presidential election would not necessarily vitiate the entire general election and the
annulment of a presidential election needed not occasion a constitutional crisis, as the authority to
declare a presidential election invalid was granted by the Constitution itself.
83. The petition contained numerous allegations of irregularity, illegality and electoral oences, enough, if
proved to the required burden and standard, and if it aected the result to void the presidential election.
The allegations were however not proved and where evidence was adduced, there was sucient
evidence to rebut the allegations.
84. The Supreme Court should never abdicate its duty as an election court exercising exclusive original
jurisdiction to hear and determine disputes relating to the elections to the oce of President arising
under article 140 of the Constitution. As an election court, the court must not narrow the scope of its
remedies nor delegate its powers to the parties. The zeal of the voter to participate in elections and the
overwhelming responsibility of every State organ and stakeholders to conduct free, fair and peaceful
elections must be matched by equal zeal from the court.
85. The majority nullied the conduct of the presidential elections solely on the basis that some Forms 34A
and 34B lacked security features which were elected by the IEBC and spread in dierent versions across
most forms. The majority, in the aftermath of the Registrar’s report did not even attempt to peruse
the enormous evidence deposited by the 1st and 2nd respondents bearing certied copies of Forms 34A
and 34B of the Constitution and against which they ought to have checked the alleged irregularities.
By subjecting the integrity of the election to considerations of design, that were neither statutory nor
regulatory, the majority had not only threatened the people’s belief in the electoral system, it had
overburdened and in fact, negated the electorate‘s right to franchise.
86. In election causes, the majority ought to have disengaged the mechanical gear of appellate jurisdiction
and fully considered the evidence against the dictates of the burden and standard of proof. The absence
of time was not a sucient excuse. The court had a competent institution of research and was well
facilitated to be able to perform the role of an election court as a nal verifying agent in cases of
monumental importance such as the instant petition.
87. Just as Parliament was expected to operate within its constitutional powers as an arm of Government so
must the Judiciary. The system of checks and balances that prevented autocracy, restrained institutional
excesses and prevented abuse of power, applied equally to the Executive, the Legislature and the
Judiciary. No one arm of Government was infallible and all were equally vulnerable to the dangers of
acting ultra vires the Constitution. Whereas, the Executive and the Legislature were regularly tempered
and safeguarded through the process of regular direct elections by the people, the discipline of an
appointed and unelected judicial arm of Government was largely self-regulatory. The parameters of
encroachment on the powers of other arms of government had to be therefore clearly delineated, limits
acknowledged and restraint fully exercised. It was only through practice of such cautionary measures
that the remotest possibility of judicial tyranny could be avoided.
88. Had the majority been engaged in the mode of a court of exclusive original jurisdiction, it would have
found that each and every allegation in the petition was addressed to a satisfactory standard and where
and if, the burden of proof shifted, the IEBC discharged it satisfactorily.
89. Petition would have been dismissed with costs.
Petition allowed.
Orders
a. A declaration was issued that the presidential election held on August 8, 2017 was not conducted in
accordance with the Constitution and the applicable law rendering the declared result invalid, null and
void.
b. A declaration was issued that the irregularities and illegalities in the presidential election of August
8, 2017 were substantial and significant that they affected the integrity of the election, the results not-
withstanding.
c. A declaration was issued that the 3rd respondent was not validly declared as the President elect and that
the declaration was invalid, null and void.
d. An order was issued directing the IEBC to organize and conduct a fresh presidential election in strict
conformity with the Constitution and the applicable election laws within 60 days of the determination of
September 1, 2017 under article 140(3) of the Constitution.
e. Each party to bear its own costs.
Citations
Cases
1. Adam, Nathif Jama v Abdikhaim Osman Mohamed & 3 others (Petition 13 of 2014; [2014] eKLR)
— Applied
2. Albeity, Hassan Abdalla v Abu Mohamrd Abu Chiaba & another (Election Petition 9 of 2013;
[2013] KEHC 2132 (KLR)) — Explained
3. Aramat, Lemanken v Harun Meitamei Lempaka & 2 others (Petition 5 of 2014; [2014] eKLR) —
Explained
4. CMAWM v PAWM (Civil Appeal 2 of 2014; [2015] KECA 673 (KLR)) — Mentioned
5. Gitau, William Kabogo v George Thuo & 2 others (Civil Appeal 126 of 2008; [2009] eKLR) —
Mentioned
6. Githinji, Dickson Mwenda v Gatirau Peter Munya & 2 others (Civil Appeal 38 of 2013) — Applied
7. Imanyara, Mugambi & another v Attorney General & 5 others (Constitutional Petition 399 of 2016;
8. Independent Electoral & Boundaries Commission v Kiai & 4 others (Civil Appeal 105 of 2017;
[2017] KECA 477 (KLR); [2017] 2 KLR 1136) — Explained
9. In Re the Matter of Interim Independent Electoral Commission (Constitutional Application 2 of
2011; [2011] eKLR; [2011] 2 KLR 32) — Followed
10. In Re the Matter of Kenya National Commission on Human Rights (Reference 1 of 2014; [2014]
KESC 20 (KLR)) — Explained
11. In Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate
(Advisory Opinions Application 2 of 2012; [2012] eKLR; [2012] 3 KLR 718) — Mentioned
12. In Re the Matter of the Speaker of the Senate & Senate of the Republic of Kenya (Advisory Opinions
Application 2 of 2013; [2013] KESC 7 (KLR)) — Explained
13. Joho & another v Shahbal & 2 others (Petition 10 of 2013; [2014] eKLR; [2014] 1 KLR 111) —
Explained
14. Joho, Hassan Ali v Hotham Nyange & Anania Mwasambu Mwaboza (Election Petition 1 of 2005;
[2005] KEHC 1291 (KLR); [2008] 3 KLR (EP) 500) — Explained
15. Kabage, Karanja v Joseph Kiuna Kariambegu Nganga & 2 others (Election Petition 12 of 2013;
16. Kai, Sarah Mwangudza v Mustafa Idd (Sued in Capacity as the County Returning Ocer
(IEBC) Kili & Independent Electoral & Boundaries Commission (Election Petition 8 of 2013;
17. Kariuki, Steven v George Mike Wanjohi & 2 others (Election Petition 2 of 2013;
[2013] KEHC 2191 (KLR)) — Applied
18. Kidero & 4 others v Waititu & 4 others (Petition 18 & 20 of 2014; [2014] KESC 11 (KLR)) —
Explained
19. Kingara, Peter Gichuki v Independent Electoral and Boundaries Commission & 2 others (Civil Appeal
31 of 2013; [2014] eKLR) — Applied
20. Lisamula v Independent Electoral and Boundaries Commission & 2 others (Petition 9 of 2014; [2014]
eKLR; [2014] 4 KLR 316) — Explained
21. Lukoye, Moses Wanjala v Bernard Alfred Wekesa Sambu & 3 others (Election Petition 2 of 2013;
22. Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011; [2012]
eKLR; [2012] 3 KLR 199) — Explained
23. Magara, James Omingo v Manson Onyongo Nyamweya & 2 others (Civil Appeal 8 of 2010; [2010]
eKLR) — Explained
24. Masaka, Benard Shinali v Boni Khalwale & 2 others (Election Petition 2 of 2008; [2011] eKLR) —
Mentioned
25. Mathenge, Dr. Thuo & another v Nderitu Gachagua & 2 others (Civil Appeal 29 of 2013;
[2013] KECA 84 (KLR)) — Applied
26. Mboya, Apollo v Attorney General & 15 others (Petition 162 of 2017; [2017] KEHC 2725 (KLR))
— Explained
27. Miriti, M'nkiria Petkay Shen v Ragwa Samuel Mbae & 2 others (Civil Appeal 47 of 2013;
[2014] KECA 698 (KLR)) — Explained
28. Mohammed, Abdikhaim Osman & another v Independent Electoral and Boundaries Commission &
2 others (Civil Appeal 293 of 2013; [2014] KECA 637 (KLR)) — Explained
29. Munialo, Jack Mukhongo & 12 others v Attorney General & 2 others (Petition 162 of 2017; [2017]
eKLR) — Explained
30. Munya, Gatirau Peter v Dickson Mwenda Kithinji & 2 others (Petition 2B of 2014; [2014] eKLR) —
Explained
31. Munya, Gatirau Peter v Dickson Mwenda Kithinji & 2 others (Application 5 of 2014; [2014] eKLR)
— Explained
32. Muruli, Mable v Wyclie Ambetsa Oparanya & 3 others (Petition 11 of 2014; [2016] eKLR) —
Applied
33. Mwashetani, Khatib Abdalla v Gideon Mwangangi Wambua & 3 others (Civil Appeal 39 of 2013;
[2014] KECA 848 (KLR)) — Explained
34. National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2
others (Civil Appeal 258 of 2017; [2017] KECA 342 (KLR)) — Explained
35. National Super Alliance (Nasa) Kenya v Independent Electoral & Boundaries Commission, & 2 others
(Petition 328 of 2017; [2017] KEHC 4466 (KLR)) — Explained
36. Ngoge v Kaparo & 5 others (Petition 2 of 2012; [2012] eKLR; [2012] 2 KLR 419) — Applied
37. Njenga, Peter Kariuki v Gabriel P. Muchira & John Kinyua (Civil Appeal 188 of 2010;
38. Obado, Zacharia Okoth v Edward Akong’o Oyugi & 2 others (Petition 4 of 2014; [2014] eKLR) —
Mentioned
39. Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5,
3 & 4 of 2013 (Consolidated); [2013] KESC 6 (KLR)) — Explained
40. Otieno, Kenneth v Attorney General & Independent Electoral & Boundaries Commission (IEBC)
(Petition 127 of 2017; [2017] KEHC 4811 (KLR)) — Explained
41. Rai & 3 others v Rai & 4 others (Petition 4 of 2012; [2013] eKLR; [2013] 2 KLR 142) — Explained
42. Republic v Independent Electoral and Boundaries Commission Ex-Parte Gladwell Otieno & another
(Judicial Review Miscellaneous Application 447 of 2017; [2017] eKLR) — Explained
43. Royal Media Services Ltd v Attorney General (Petition 346 of 2012; [2012] KEHC 2053 (KLR)) —
Explained
44. Tallam, Collins Kipchumba v The Attorney General (Petition 415 of 2016; eKLR) — Applied
45. Wanjohi, George Mike v Steven Kariuki & 2 others (Petition 2A of 2014; [2014] eKLR) — Explained
46. Waweru, John Kiarie v Beth Wambui Mugo & 2 others (Election Petition 13 of 2008;
[2008] KEHC 826 (KLR)) — Mentioned
47. Wetang’ula, Moses Masika v Musikari Nazi Kombo & 2 others (Civil Appeal 43 of 2013;
[2014] KECA 734 (KLR)) — Cited in Dissenting Opinion
48. Wetangula, Moses Masika v Musikari Nazi Kombo & 2 others (Petition 12 of 2014;
[2015] KESC 12 (KLR)) — Explained
49. Madundo v Mweshemi & A-G Mwanza (HCMC No 10 of 1970) — Explained
50. Amama Mbabazi v Museveni & Ors (Presidential Election Petition No 1 of 2016; [2016] UGSC 3)
— Explained
51. Kiiza Besigye v Attorney General ((Constitutional Petition No. 13 of 2009) [2016] UGCC 1 (29
January 2016)) — Explained
52. Kizza Besigye v Electoral commission,Yoweri Kaguta Museveni ((Election Petition No. 1 of 2006)
[2007] UGSC 24) — Applied
53. Olum & another v Attorney General ((Constitutional Petition No 6 of 1999) [2000] UGCC 3; [2002]
EA 508) — Explained
54. Winnie Babihunga v Masiko Winnie Komuhamhia & others (HTC-OO-CV-EP-004-2001) —
Explained
55. Pilane v Molomo & another ((1990) BLR 214 (HC)) — Mentioned
56. Akufo-addo and Others Vrs Mahama and Another ((J8 31 of 2013) [2013] GHASC 137) — Explained
57. Abubakar v Yar‘adua ((2009) All FWLR (Petition 457) 1SC) — Explained
58. Buhari v Obasanjo ((2003) 17 NWLR (PT 850) 587; (2003) 11 SC 74) — Explained
59. Olusola Adeyeye v Simeon Oduoye & others ((2010) LPELR_CA/I/EPT/NA/67/08) — Mentioned
60. August and Another v Electoral Commission and Others ((CCT8/99) [1999] ZACC 3; 1999 (3) SA
1; 1999 (4) BCLR 363) — Explained
61. Electoral Commission v Mhlope and Others ((CCT55/16) [2016] ZACC 15; 2016 (8) BCLR 987
(CC); 2016 (5) SA 1 (CC) (14 June 2016)) — Explained
62. Firestone South Africa (Pty) Ltd v Genticuro A.G. (1977 (4) SA 298 (A)) — Explained
63. Kham and Others v Electoral Commission and Another ((CCT64/15) [2015] ZACC 37; 2016 (2)
BCLR 157 (CC); 2016 (2) SA 338 (CC)) — Explained
64. New National Party v Government of the Republic of South Africa and Others ((CCT9/99) [1999]
ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489) — Explained
65. Richter v The Minister for Home Aairs and Others (with the Democratic Alliance and Others
Intervening, and with Afriforum and Another as Amici Curiae) ((CCT03/09, CCT 09/09) [2009]
ZACC 3; 2009 (3) SA 615 (CC) ; 2009 (5) BCLR 448 (CC)) — Explained
66. Akashambatwa Lewanika & others v Fredrick Chiluba ((S.C.Z. Judgment No. 14 of 1998) [1998]
ZMSC 11; (1999) 1 LRC 138) — Explained
67. Kean v Kerby ([1920] HCA 35; 27 CLR 449; [1920] 27 CLR 449) — Explained
68. FH v McDougall ([2008] 3 SCR 41) — Mentioned
69. Opitz v Wrzesnewskj ((2012) SCC 55-2012-10-256) — Explained
70. R v Big M Drug Mart Ltd (1 S.C.R. 295, 18 D.L.R. (4th) 321; [1985] 1 SCR 295) — Explained
71. Charan Lal Sahu & Others v Giani Zail Singh & another (1984 AIR 309, 1984 SCR (2) 6) — Explained
72. Golak Nath v The State of Punjab (AIR 1643, 1967 SCR (2) 762 (1967)) — Explained
73. Jagdev Smgli v Pratap Singh Daulla ((1965) AIR SC 18) — Explained
74. Jeet Mohinder Singh v Harmoniser Singh Jassi (1999 Supp (4) SCr 33; AIR 2000 256) — Explained
75. Jitendra Bahadur Singh v Krishna Behari and others ([1969] INSC 176; AIR 1970 SC 276) —
Explained
76. Joshna Gouda v Brundaban Gouda & another (SC Civil Appeal No 15174 of 2011; (2012) 5 SCC
634) — Explained
77. Kanhiyalal Omar v RK Trivedi & others (1986 AIR 111, 1985 SCR Supl. (3) 1.) — Explained
78. Narendra Madivalapa Kheni v Manikarao Patil and Others (AIR 1977 SC 2171; 1977 (2) KarLJ 355;
[1978] 1 SCR 193) — Explained
79. Ponnala Lakshmaiah v Kommuri Pratap Reddy & others (Civil Appeal 4993 of 2012; 2012 DGLS
(SC) 323 : AIR 2012 (SC) 2638) — Explained
80. Rahim Khan v Khurshid Ahmed & Ors (1975 AIR 290, 1975 SCR (1) 643) — Explained
81. Shiv Kirpal Singh v Shri VV Giri (1971 SCR (2) 197) — Explained
82. State of Madras v Champakam Dorairajan (AIR 1951 SC 226) — Explained
83. Union of India v Association for Democratic Reforms & another (Appeal (Civil) 7178 of 2001; [2002]
AIR 2112) — Explained
84. Vashist Narain Sharma v Dev Chandra & others (1954 AIR 513; 1955 SCR 509) — Explained
85. Kiely v Kerry County Council (Rev 1) ([2015] IESC 97) — Explained
86. Popular Democratic Movement v Electoral Commission & Anor ((SCA 16 of 2011) [2011] SCCA
25; (2011) SLR 385) — Explained
87. Wavel John Charles Ramkalawan v The Electoral Commission ([2016] SCCC 11) — Explained
88. Jugnauth v Ringadoo and others ([2008] UKPC 50) — Explained
89. Mölnlycke A.B. v Procter & Gamble Ltd ([1991] EWCA Civ J0627-10; [1994] RPC 49) — Explained
90. Morgan v Simpson ([1974] 3 All ER 722; [1975] 1 QB 151) — Explained
91. Practice Statement (Judicial Precedent) ([1966] 1 WLR 1234, HL(E)) — Explained
92. Re B (Children) ([2008] Fam Law 619; [2008] 3 WLR 1; [2008] 4 All ER 1; Re [2008] UKHL 35)
— Explained
93. Rockwater Ltd v Technip France SA & Anor ([2004] EWCA Civ 381) — Explained
94. Simmons v Khan ([2008] EWHC B4 (QB)) — Explained
95. Woodward v Sarsons ((1875) LR 10) — Explained
96. Brown v Carr (47 S.E. 2d 401, 130 W. Va. 455) — Explained
97. Bush v Gore (531 U.S. 98 (2000)) — Explained
98. State of South Dokota v State of North Carolina (192, U.S. 286 (24 S. Ct. 269, 48 L. Ed. 448)) —
Explained
Statutes
1. Access to Information Act, 2016 (Act No 31 of 2016) — section 4 — Interpreted
2. Appellate Jurisdiction Act (cap 9) — In general — Cited
3. Constitution of Kenya, 2010 — article 1(3)(a)(c); 2; 4; 10(2)(a); 19; 20(3)(4)(a); 27(8); 35(2); 38,(2),
(3)(b)(c); 47; 50(4); 54; 56; 81,(e)(ii)(iv)(v); 82,(1)(d); 83,(3); 86,(b),(c); 87(3); 88; 90; 91; 94; 100; 101;
129(1); 136; 138,(3)(a)(c),(4)(10); 140,(2),(3); 159(2)(d)(e); 160(1); 163,(3) (a),(7); 165(3)(a); 166(2);
232; 248; 249(1); 259(1)(a)(b)(d); Chapter 7, 8, 9; Preamble ; Chapter 6 — Interpreted
4. Constitution of Kenya (Repealed) — section 5 (3)(f), (5) (e) — Interpreted
5. Election Campaign Financing Act, 2013 (Act No 42 of 2013) — In general — Cited
6. Election Oences Act, 2016 (Act No 37 of 2016) — section 10, 14, 15 — Interpreted
7. Elections Act, 2011 (Act No 24 of 2011) — section 2; 4; 5 (1); 6; 6A; 10 (1); 17 (1); 30; 39 (1C); 44;
44A; 44B; 83; 109 — Interpreted
8. Elections (General) Regulations, 2012 (Act No 24 of 2011 Sub Leg) — regulation 2, 3, 5(1A); 6; 7(1)
(c); 62, (1)(g), (3); 68; 69; 70; 73; 74, (4)(f); 76; 77; 78; 79(2)(a), (c), (3-7); 80; 81; 82; 83; 85; 87(1)(a)
(3); 94(6); 95 — Interpreted
9. Elections (Registration of Voters) Regulations, 2012 (Act No 24 of 2011 Sub Leg) — regulation 12
— Interpreted
10. Elections (Technology) Regulations, 2017 (Act No 24 of 2011 Sub Leg) — regulation 10, 15(4), 20,
21, 22, 23 — Interpreted
11. Electoral Code of Conduct (Act No 24 of 2011 Sub Leg) — regulation 3, 6 — Interpreted
12. Evidence Act (cap 80) — section 48, 50, 80, 83, 106, 107, 108, 109, 110 — Interpreted
13. Independent Electoral And Boundaries Commission Act, 2011 (Act No 9 of 2011) — section 4 (m);
8A; 23; 25 — Interpreted
14. Interpretation And General Provisions Act (cap 2) — section 72 — Interpreted
15. Leadership And Integrity Act, 2012 (Act No 19 of 2012) — section 23 — Interpreted
16. National Assembly and Presidential Elections Act (Repealed) (cap 2) — section 28 — Interpreted
17. Political Parties Act, 2011 (Act No 11 of 2011) — In general — Cited
18. Prevention, Protection And Assistance To Internally Displaced Persons And Aected Communities
Act, 2012 (Act No 56 of 2012) — In general — Cited
19. Public Ocer Ethics Act, 2003 (Act No 4 of 2003) — In general — Cited
20. Supreme Court Act, 2011 (Act No 7 of 2011) — section 3, 12, 14, 83 — Interpreted
21. Supreme Court (Presidential Election Petition) Rules, 2017 (Act No 7 of 2011 Sub Leg) — In general
— Cited
22. Election Regulations, 2004 (Act No 202 of 1993 Sub Leg) — regulation 25
23. Electoral Act ,1993 (Act No 202 of 1993) — section 47(3) — Interpreted
24. Indian Penal Code — section 171A (b); 171 (C) — Interpreted
25. Electoral Act, 1993 — section 178, 179 — Interpreted
26. Ballot Act, 1872 — In general — Cited
27. Representation of the People‘s Act, 1983 (cap 2) — section 47, 48, 50, 123 — Interpreted
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p 66.)
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Blueprints: 10.17176/20160216-140832.)
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Books, 3rd Edition, p 252)
16. Dias, RWM., (1976), Jurisprudence (London: Butterworths, 4th Edition p 17)
17. European Union (2016), Compendium of International Standards for Elections (Brussels and
Luxembourg: Publication Oce of the European Union, 2016; 4th Edition, pp 22-23.)
18. Farber, DA., & Sherry, S., (2009), Judgment Calls: Principle and Politics on Constitutional Law
(London: Oxford University Press, 2008)
19. Garner, BA., (1995), A Dictionary of Modern Legal Usage (London: Oxford University Press; 2nd
edition)
20. Garner, BA., (ed) (2004), Black’s Law Dictionary (St Paul Minnesota: Thomson West; 8th edition)
21. Garner, BA., (Ed) (2009), Black’s Law Dictionary (St Paul Minnesota: West Group 9th Edn p 1535)
22. Goodman, A., (2009), How Judges Decide Cases: Reading, Writing and Analysing Judgments (New
Delhi: Universal Law Publishing Co Pvt Ltd, 2nd Indian Reprint, p 44)
23. Hatchard, J., (ed) (2015), Election Pettitions and the Stanard of Proof (Denning Law Journal Vol 27
p 291)
24. Herrnson, PS., et al (2012), The Impact of the Ballot Type on Voter Errors' in American Journal of
Political Science (American Journal of Political Science, Vol 56 No 3 (July, 2012) pp 716-730)
25. Heward, E., (2011), Lord Manseld (New Delhi: Universal Law Publishing Co Pvt Ltd, 2nd Indian
Reprint)
26. Hogg, QM., (Lord Hailsham) et al (Eds) (1995), Halsbury’s Laws England (London: Butterworth 4th
Edn Vol 17 para 13)
27. Holdsworth, WS., (ed) (1937), Lord Manseld (The Law Quarterly Review, Vol 53 pp 221-234;)
28. Holmes, OW., (1881), The Common Law (Boston: Little, Brown and Company)
29. Holmes, OW., (ed) (1907), In Memoriam: Frederic William Maitland (The Law Quarterly Review,
Vol 23 (1907), pp 137-138)
30. Independent Electoral and Boundaries Commission (2017), Election Manual (Source Book) (Nairobi:
Independent Electoral and Boundaries Commission, chapter III, pp 9, 32, 138)
31. Independent Review Commission on the General Elections (IREC) (2008), Report of the
Independent Review Commission on the General Elections Held in Kenya on 27 December , 2007
(The Kriegler Report) (Independent Review Commission on the General Elections (IREC), pp 9, 138)
32. Kumar, A., (2014), Election Laws and Corrupt Practice in India (International Journal of
Multidisciplinary Approach and Studies, Volume 01, No.5, Sep - Oct 2014)
33. Lewis, G., (2008), Lord Atkin (New Delhi: Universal Law Publishing Co Pvt Ltd, 2nd Indian Reprint)
34. Likoti, JF., (2009), Electoral Managment Bodies as Institutions of Good Giovernance: Focus on
Lesotho Independent Electoral Commission (New Haven CT and London: Yale University Press;
Review of South African Studies Vol 13 (1) pp 123-142 at p 126)
35. Lumumba, PLO., (2015), From Jurisprudence to Poliprudence: The Kenyan Presidential Election
Petition 2013 (Nairobi: The Law Society of Kenya Journal, Vol II 2015 No 1, Law Africa.)
36. Mackay, JPH., (Lord of Clashfern) (Ed) (1964), Halsbury's Laws of England (London: Butterworths
3rd Edn para 52)
37. Malik, H., (ed) (2010), Phipson on Evidence (London: Sweet and Maxwell, London, 17th Edn, pp
149-151)
38. Martin, R., (1985), Rawls and Rights (Lawrence, Kansas: University Press of Kansas, Illustrated
edition)
39. Milacic, S., (ed) (2010), "Justice Coming face to face with electoral norms" in The Cancellation of
Election results The Science and Technique of Democracy (Council of Europe , Venice Commission,
No 46; (2010), pp 25-67)
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41. Muga, W., (2017), The Most Complex and Expensive Political Situations (The Star, September 7,
2017, p 20)
42. Odote, C., & Musumba L., (eds) (2016), A Critigue of the Raila Odinga v IEBC Decision in light
of the Legal Standards for Presidential Elections in Kenya (Nairobi: International Development Law
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(Nairobi: The Standard, September 11, 2017, p 14)
45. Organization for Security and Co-operation in Europe (Oce for Democratic Institutions and
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Institutions and Human Rights (ODIHR)) 2nd Edition p 70)
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Results of the Election? (Judiciary Training Institute)
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Independent Electoral and Boundaries Commission (Nairobi, Kenya ; Parliament of Kenya, Volume 1)
48. Salevao, L., (2005), Rule of Law, Legitimate Givernance and Development in the Pacic (Canberra,
Australia: ANU Press & Asia Pacic Press, p 2)
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Advocates
Mr James Orengo for 1st & 2nd Petitioners
Mr Otiende Amollo for 1st & 2nd Petitioners
Mr Pheroze Nowrojee for 1st & 2nd Petitioners
Mr Paul Mwangi for 1st & 2nd Petitioners
Dr Mutakha Kangu for 1st & 2nd Petitioners
Prof Ben Sihanya for 1st & 2nd Petitioners
Mr Jackson Awele for 1st & 2nd Petitioners
Mr Paul Muite for 1st Respondent
Mr Kamau Karori for 1st Respondent
Prof PLO Lumumba for 2nd Respondent
Mr Peter Wanyama for 2nd Respondent
Mr Fred Ngatia for 3rd Respondent
Mr Ahmednassir Abdullahi for 3rd Respondent
Mr Harrison Kinyanjui for 2nd Interested Party
Prof Githu Muigai, Attorney General for 1st Amicus Curiae
Mr Steve Mwenesi for 2nd Amicus Curiae
Mr Omwanza Ombati for 2nd Amicus Curiae
JUDGMENT
A. Introduction
1. Kenya is a sovereign Republic and a constitutional democracy founded on national values and
principles of governance in article 10 of her Constitution. All sovereign power in the Republic is
reserved to her people but delegated to
"Parliament and legislative assemblies in the County Governments; the national executive
and the executive structures in the County Governments; and the Judiciary and the
independent tribunals.1"
1
Constitution of Kenya, 2010, Article 1.
In the election of her representatives, Kenya holds general elections on the second Tuesday of August
in every fth year.2
2. On August 8, 2017, Kenya held her second general election under the Constitution, 2010 and Kenyans
from all walks of life trooped to 40,883 polling stations across the country to exercise their rights to
free, fair and regular elections under article 38(2) of the Constitution. That date is signicant because
it was the rst time that a general election was being held pursuant to article 101(1) of the Constitution
which decrees the holding of general elections every ve years on the second Tuesday of August in the
fth year.
3. The general election was also held for the rst time under an elaborate regime of electoral laws including
amendments to the Elections Act made to introduce the Kenya Integrated Electoral Management
System (KIEMS) which was a new devise intended to be used in the biometric voter registration,
and, on the election day, for voter identication as well as the transmission of election results from
polling stations simultaneously to the Constituency Tallying Centre (CTC) and the National Tallying
Centre (NTC). The membership of the 1st respondent, the Independent Electoral and Boundaries
Commission (IEBC), had also been changed barely seven months to the general election.
4. The number of registered votes in the country was 19, 646, 673 and on August 11, 2017, the 2nd
respondent, exercising his mandate under article 138(10) of the Constitution, as the Returning Ocer
of the Presidential election, declared the 3rd respondent, Uhuru Muigai Kenyatta, the winner of the
election with 8,203,290 votes and the 1st petitioner, Raila Amollo Odinga, the runner‘s up with
6,762,224 votes.
5. On August 18, 2017, Raila Amolo Odinga and Stephen Kalonzo Musyoka, who were the presidential
and deputy presidential candidates respectively of the National Super Alliance (NASA) Coalition of
parties, running on an Orange Democratic Movement (ODM) party ticket and Wiper Democratic
Movement ticket respectively, led this petition challenging the declared result of that Presidential
election (the election).
6. The petitioners in the petition aver that the Independent Electoral and Boundaries Commission
(IEBC), conducted the election so badly that it failed to comply with the governing principles
established under Articles 1, 2, 4, 10, 38, 81, 82, 86, 88, 138, 140, 163 and 249 of the Constitution of
Kenya and the Elections Act (No 24 of 2011).
B. The Parties
7. The IEBC, the 1st respondent, is an independent Commission established under article 88 as read
together with articles 248 and 249 of the Constitution of Kenya and the IEBC Act No 9 of 2011.
It is constitutionally charged with the mandate and responsibility of conducting and/or supervising
referenda and elections to any elective body or oce established by the Constitution, as well as any other
elections as prescribed by the Elections Act.
8. The 2nd respondent, the Chairperson of IEBC, who is also the Returning Ocer for the Presidential
election, is constitutionally mandated under article 138(10) of the Constitution of Kenya to declare the
result of the presidential election and deliver a written notication of the result to the Chief Justice
and the incumbent President.
2
Constitution of Kenya, 2010, Articles 101 (1), 136(2)(a), 177(1)(a) and 180(1).
9. The 3rd respondent is the President of the Republic of Kenya and was the presidential candidate of the
Jubilee Party in the August 2017 presidential elections and was declared the winner of the said elections
by the 1st respondent on August 11, 2017.
C. Interlocutory Applications
10. Prior to the hearing of the petition, a number of applications were led by persons/entities seeking
either to be enjoined as amici curiae or as interested parties. On August 27, 2017, the court rendered
rulings in those applications with the consequence that:
(i) The Attorney General and the Law Society of Kenya were enjoined as amici curiae while;
(ii) Dr Ekuru Aukot and Prof Michael Wainaina were enjoined as interested parties.
11. The applications by Mr Charles Kanjama, Advocate and the Information Communication
Technology Association for joinder as amici curiae were disallowed as were those of Mr Benjamin
Wafula Barasa and Isaac Aluoch Aluochier to be enjoined as interested parties.
12. Applications by the petitioners to strike out all the respondents‘ responses to the petition were also
disallowed as were the respondents‘ applications to strike out some of the petitioners‘ adavits and
annextures in support of the petition.
13. The petitioners‘ application dated August 25, 2017 seeking orders of access to and scrutiny of forms
34A, 34B and 34C used in the presidential election, as well as access to certain information relating
to the 1st respondent‘s electoral technology system, was allowed. The exercise of access was conducted
under the direction of the Registrar of this court, two ICT experts appointed by this court with each
of the principal parties being represented by initially two and later, ve agents. The reports from that
exercise will be addressed later in this Judgment.
D. Petitioners‘ and the 1st Interested Party‘s Case

14. This petition is anchored on the grounds that the conduct of the 2017 presidential election violated
the principles of a free and fair election as well as the electoral process set out in the Constitution,
electoral laws and regulations and that the respondents committed errors in the voting, counting and
tabulation of results; committed irregularities and improprieties that signicantly aected the election
result; illegally declared as rejected unprecedented and contradictory quantity of votes; failed in the
entire process of relaying and transmitting election results as required by law; and generally committed
other contraventions and violations of the electoral process.
i. Violation of the Principles Set out in the Constitution, Electoral Laws and Regulations
15. On violation of the principles set out in the Constitution as well as the electoral laws and regulations,
the petitioners‘ case as contained in the adavits in support of the petition and the written and oral
submissions of their counsel was that in relation to elections, the citizenry‘s fundamental political
rights under Article 38 are encapsulated in the principles of free and fair elections in article 81(e)
and IEBC‘s obligation to conduct elections in a simple, accurate, veriable, secure, accountable and
transparent manner as stated in article 86 of the Constitution. The petitioners also argue that IEBC, like
all other state organs and persons, is bound by the principle of constitutional supremacy under article
2(1) of the Constitution. It follows then that, in the conduct of any election, any of its acts that violates
those principles, shall by dint of article 2(4) of the Constitution, be ipso facto invalid and any election
conducted contrary to those principles shall be nothing but a usurpation of the people‘s sovereignty
under Article 4 and shall produce masqueraders who do not represent the people‘s will and are not
accountable to them.
16. It was further submitted that instead of protecting and safeguarding the sovereign will of the people of
Kenya, IEBC so badly conducted, administered and managed the presidential election, giving rise to
this petition and that it outed the governing principles set out in articles 1, 2, 4, 10, 35(2), 38, 81, 82,
86, 88, 138, 140, 163 and 249 of the Constitution, the Elections Act and the Regulations. The petitioners
thus contended that in the conduct of the August 8th Presidential Election, IEBC agrantly outed
the principles of a free and fair election under article 81(e) of the Constitution as read together with the
Elections Act, the Election Regulations, and section 25 of the IEBC Act.
17. Furthermore, according to the petitioners, IEBC‘s was under obligation to conduct elections in a
simple, accurate, veriable, secure, accountable and transparent manner as required by article 86 of
the Constitution. The petitioners further aver that instead of complying with the above imperatives,
contrary to article 88(5) of the Constitution which requires IEBC to
"… exercise its powers and perform its functions in accordance with the Constitution and
national legislation",
in the conduct and management of the election, IEBC became a law and Institution unto itself and
instead of giving eect to the sovereign will of the Kenyan people, it delivered preconceived and
predetermined computer generated leaders thereby subverting the will of the people. It thus did not
administer election in an impartial, neutral, ecient, accurate and accountable manner.
18. They also argue that the IEBC committed massive systemic, and systematic irregularities which go to
the very core and heart of holding elections as the key to the expression of the sovereign will and power
of the people of Kenya and thus undermined the foundation of the Kenyan system as a Sovereign
Republic where the people are sovereign and the very rubric and framework of Kenya as a nation state.
ii. Improper Inuence, Corruption, Misconduct and Undue Inuence

19. It was the petitioners‘ case that the election was marred and signicantly compromised by intimidation
and improper inuence or corruption. They submitted in that regard that with impunity, the 3rd
respondent contravened the rule of law and the principles of conduct of a free and fair election through
the use of intimidation, coercion of public ocers and improper inuence of voters. Relying on the
averments in the adavit of Raila Odinga, the petitioners argued that on August 2, 2017, the 3rd
respondent directly threatened Chiefs in Makueni County for not supporting him.
20. The petitioners also accused the 3rd respondent of sponsoring or causing sponsorship during the
election period of publications and advertisements in the print and electronic media as well as on
billboards contrary to section 14 of the Election Offences Act, No 37 of 2016. Under the guise of
launching ocial state projects and paying reparations to victims of 2007 post-election violence, it was
further argued that the 3rd respondent, improperly inuenced voters by issuing cheques to Internally
Displaced Persons (IDPs) during campaign rallies.
21. The petitioners also imputed improper conduct on several Cabinet Secretaries for allegedly
campaigning for the 3rd respondent. They argued that, Cabinet Secretaries being Public Ocers, are
prohibited by the Constitution, the Political Parties Act (No 11 of 2011), the Public Officer Ethics
Act (No 4 of 2003) and the Election Offences Act from participating in political activities. They thus
demanded that the Cabinet Secretaries who campaigned for the 3rd respondent should be prosecuted.
22. The petitioners in addition urged the court to declare section 23 of the Leadership and Integrity
Act, cap 182 of the Laws of Kenya, as unconstitutional for exempting Cabinet Secretaries from the
requirement of impartiality contrary to article 232 of the Constitution.
iii. Failure in the Process of Relaying and Transmitting Results

23. In his adavit in support of the petition, Raila Odinga, deposed that following the history of electoral
malpractices in this country, the law was amended to require the IEBC to obtain and operationalise
the Kenya Integrated Electoral Management System (KIEMS) to be used in voter registration, voter
identication and the transmission of results. The said system was thus intended to ensure that no
malpractices in those activities are committed.
24. To avoid manipulation and to make the Presidential Election results secure, accurate, veriable,
accountable and transparent as required by article 86 of the Constitution, Raila Odinga further deposed
that the Elections Act was amended to add section 39(1C) which provided for simultaneous electronic
transmission of results from the polling stations to the Constituency Tallying Centre (CTC) and
the National Tallying Centre (NTC) immediately after the counting process at the polling station.
Contrary to this mandatory provision, after polling stations were closed on August 8, 2017, IEBC
inordinately delayed in the transmission of the results. As a matter of fact, on August 17, 2017, (9
days after the elections) the IEBC‘s CEO, Ezra Chiloba, allegedly admitted that IEBC had not received
all Forms 34A and 34B. That delay, coupled with the fact that IEBC had ignored advice from the
Communication Authority of Kenya (CAK) to host in Kenya its primary and disaster recovery sites
but had gone ahead and contracted OP Morpho SAS of France to host it, compromised the security
of KIEMS exposing it to unlawful interference and manipulation of results by third parties rendering
the 2017 Presidential Election a sham.
25. Raila Odinga further deposed that contrary to the provisions of section 44 of the Elections Act which
required the technology to be used in the election to be procured and put in place at least 8 months and
be tested and deployed at least 60 days before the election, IEBC tested it only 2 days to the elections.
That together with the disbandment of the Elections Technology Advisory Committee (ETAC) and
IEBC‘s unsuccessful attempt to declare section 39(1C) of the Elections Act unconstitutional through
the case of Collins Kipchumba Tallam v the AG3, is clear testimony that IEBC was not keen to
electronically transmit election results.
26. Basing their submissions on those averments, counsel for the petitioners argued that the delay and/
or failure to electronically transmit the results in the prescribed forms meant that IEBC‘s conduct of
elections was not simple, accurate, veriable, secure, accountable, and transparent contrary to article
81(e)(iv) and (v) of the Constitution. Moreover, counsel further argued, the data on Forms 34A, the
primary election results documents, was inconsistent with the one on Forms 34B as well as the numbers
IEBC kept beaming on TV screens hence unveriable. As a matter of fact, counsel argued, 10,056
polling stations had results submitted without Forms 34A.
27. The petitioners further urged that contrary to the Court of Appeal decision in Independent and
Electoral Boundaries Commission v Maina Kiai & 5 others4 [Maina Kiai case] the IEBC failed to
electronically collate, tally and transmit the results accurately, and declared results per county thus
failing to recognize the nality of the results at the polling stations.
3
Collins Kipchumba Tallam v the Attorney General, Petition No 415 of 2016.
4
Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Civil Appeal No 105 of 2017
28. Relying on the averments in the adavits of Ole Kina Koitamet, Godfrey Osotsi and Olga Karani,
counsel for the petitioners also contended that at the time of declaration of the results, IEBC did not
have results from 10,000 polling stations representing approximately 5 million voters and 187 Forms
34B hence the declaration was invalid and illegal.
29. The petitioners also submitted that given the unprecedented case of varying results in the IEBC‘s portal
and Form 34B provided; inconsistencies between the results displayed and those in the Forms 34A and
34B, the electronic system of transmission was compromised by third parties who manipulated it and
generated numbers for transmission to the NTC.
30. Counsel for the petitioners cited the cases of William Kabogo Gitau v George Thuo & 2 others5 and
Benard Shinali Masaka v Boni Khalwale & 2 others6 and urged the court to look at the entire electoral
processes rather than results alone as contended by their counterparts.
31. In the petitioners‘ view, all these violations of the law fundamentally compromised the credibility of
the presidential election and this court has no choice but to annul it.
iv Substantive Non-compliance, Irregularities and Improprieties that Aected Results

32. It was the petitioners‘ case that the election was so badly conducted and marred with irregularities that
it does not matter who won or was declared winner. The irregularities committed signicantly aected
the results to the extent that IEBC cannot accurately and veriably determine what results any of the
candidates got, so the petitioners contended.
v Errors in the Voting, Counting and Tabulation of Results

33. Relying on the adavit of George Kegoro of 'Kura Yangu Sauti Yangu initiative‘, counsel for the
petitioners submitted on the above issues that the results announced by the Returning Ocers were
not openly and accurately collated. They contended that the results tabulated in Forms 34A diered
signicantly from those captured in Forms 34B and also those displayed in the IEBC maintained public
portal.
34. Counsel contended that in numerous instances, IEBC deliberately inated votes cast in favour of the
3rd respondent. As a consequence, they further argued, it is impossible to determine who actually won
the presidential election and/or whether the threshold for winning the election under the Constitution
was met.
35. On the averments in the adavits of Mohamud Noor Bare and Ibrahim Mohamed Ibrahim, it was
contended that IEBC illegally and fraudulently established un-gazetted polling stations in Mandera
County which were manned by un-gazetted and undesignated returning and presiding ocers.
36. Based on the averments in the adavits of Dr Nyangasi Oduwo and Godfrey Osotsi, the petitioners
contended that on the August 8, 2017, at around 5.07 pm, barely 10 minutes after closure of the polling
stations, IEBC started streaming in purported results of the presidential vote through the IEBC web
portal and the media with constant percentages of 54% and 44% being maintained in favour of the 3rd
respondent and the 1st petitioner respectively.
37. The petitioners also argued that a whooping 14,078 Forms supplied by IEBC had fatal and
irredeemable irregularities and that some Forms 34A and 34B lacked the names of Returning Ocers;
5
William Kabogo Gitau v George Thuo & 2 others; Civil Appeal No 126 of 2008; [2009] eKLR.
6
Benard Shinali Masaka v Boni Khalwale & 2 others, Election Petition 2 of 2008; [2011] eKLR.
some lacked the IEBC authentication stamp; some were not signed by the candidates‘ agents and no
reasons were given for that failure; dierent polling stations bore the name of the same person as the
presiding ocer; several Forms 34A were altered and tampered with; the number of Forms 34A handed
over was not clear; several Forms 34As were signed by un-gazetted presiding ocers; some forms were
illegible; the handwriting and signatures on Forms 34A appeared made up; some Forms 34A were lled
in the same handwriting; and some Forms 34A did not relate to any of the existing gazetted polling
stations/tallying centres; and contrary to regulations 79(2)(a) and 87(1)(a), IEBC used dierent Forms
34A and 34B at some polling stations and constituency tallying centres.
38. On the further averments of Dr Nyangasi Oduwo, the petitioners also contended that upon examining
about 5000 Forms 34A, serious discrepancies were noted between the gures on Forms 34A given to
the petitioners‘ agents at various polling stations and those posted on IEBC‘s website and a number of
Forms 34B uploaded on to the IEBC‘s website were incomplete. Dr Nyangasi also deposed that from
the records he examined, while 15,558,038 people voted for the presidential candidate, 15,098,646
voted for gubernatorial candidates and 15,008,818 voted for MPs raising questions as to the validity
of the extra votes in the presidential election.
39. The petitioners submitted that at the time of declaration of results, IEBC publicly admitted that it had
not received results from 11,883 polling stations and 17 constituency tallying centres. In its letter of
August 15, 2017, IEBC also admitted that it had not received authentic Forms 34A from 5,015 polling
stations representing 3.5 million votes. Lastly, the petitioners claimed they had knowledge that more
than 10, 000 Forms 34A were not available at the time of declaration of the results and that they were
being scanned at Bomas and Anniversary Towers even during the pendency of this petition.
vi. Unprecedented and Contradictory Quantity of Rejected Votes

40. The petitioners took issue with the large number of rejected votes accounting for at least 2.6% of the
total votes cast arguing that that has an eect on the nal results and the outcome of the presidential
election. In this regard, the petitioners urged the court to reconsider its nding on rejected votes in
Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others7 and hold
that rejected votes should be taken into account in the computation to determine the threshold under
Article 138(4) of the Constitution.
41. The First interested party, Dr Ekuru Aukot, buttressed the petitioners‘ case. He submitted that
the massive non-compliance with the law by IEBC‘s ocials constitute grounds for nullifying the
presidential election. He produced a report compiled by his party‘s Chairman, Mr Miruru Waweru
on the irregularities committed by IEBC. Some of the alleged irregularities contained in the report
included dierent Forms 34B originating from the same constituency like Bahati in Nakuru County
and Kuresoi South; Forms 34A issued but not used; and several of them having diering serial numbers.
42. Dr Aukot also raised issue with the declaration of the presidential results without all Forms 34A, which
he stated was non-compliant with section 39 of Elections Act as directed in the Maina Kiai decision.
He echoed the petitioners‘ case that the whole process of counting, tallying and transmission of results
from polling stations to the CTC and nally to the NTC lacked fairness and transparency.
43. In addition, the petitioners faulted the late publication of the public notice on polling stations lacking
network coverage for being unlawful, arbitrary and non-veriable and contrary to the requirement
of 45 days publication before the general elections which was in breach of regulation 21, 22 and 23
of the Elections (Technology) Regulations 2017. They urged that the 1st respondent‘s averments were
misleading and contradicted the publicly available Communications Authority of Kenya Access Gap
7
Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others, Petition No 5 of 2013; [2013] eKLR.
Study Report 2016 which shows that only 164 sub-locations are not network covered and that 94% of
the population is covered by at least 2G network services.
vii. Interpretation and Application of Section 83 of the Elections Act
44. On the law, the petitioners argued that by the use of the term 'or" in section 83 of the Elections Act
unlike the term "and" in the English equivalent Act, the two limbs of that provision are disjunctive
and not conjunctive. They therefore urged the court to depart from its interpretation of section 83
of the Elections Act in the 2013 Raila Odinga case. They argued that despite the conjunctive nature
of the English section, the same was given a disjunctive interpretation in the famous case of Morgan
v Simpson.8
45. The rst interested party supported the petitioners‘ case on the interpretation of Section 83 of the
Elections Act and urged that the provision should not be used to sanctify all manner of illegalities and
irregularities which may occur during the electoral process so as to render them immaterial.
46. On the standard of proof to be applied, the petitioners submitted that this court erred in the 2013
Raila Odinga case in holding that save where criminal allegations are made in a petition, the standard
of proof in election cases is the intermediate one, above a balance of probabilities but below the one
for criminal cases of beyond reasonable doubt.
47. Appreciating that the court had reviewed several positions held by various jurisdictions in setting
the standard of proof in the 2013 Raila Odinga case, the petitioners submitted that the emerging
jurisprudence set out by the House of Lords in England is that in law, there exists only two standards
of proof, the criminal standard of beyond reasonable doubt and the civil standard of balance of
probabilities. They cited the case of Re B (Children)9 in support of that proposition.
48. It was further urged that besides Canada, the position held by the House of Lords has recently
been emulated by the Constitutional Court of Seychelles in Wavel John Charles Ramkalawan v The
Electoral Commission.10
49. Citing the decision of the Canadian Supreme Court in the case of FH v McDougall11, the petitioners
contended that the elevation of the civil standard of proof in respect of matters which are not criminal
in nature on the basis that they are deemed as serious matters‘ is improper. In the circumstances, they
urged the court to nd that the applicable standard of proof in the presidential election petition is on
a balance of probabilities.
50. The petitioners concluded by submitting that their petition is merited and should be allowed in the
following terms:
a. Immediately upon the ling of the petition, the 1st respondent do avail all the material
including electronic documents, devices and equipment for the Presidential Election within
48 hours.
b. Immediately upon the ling of the petition, the 1st respondent do produce, avail and allow
access for purposes of inspection of all the logs of any and all servers hosted by and/or on behalf
of the 1st respondent in respect of the Presidential Election within 48 hours.
8
Morgan v Simpson [1974] 3 All ER 722
9
Re B (Children) 2008 UKHL 35
10
Wavel John Charles Ramkalawan v The Electoral Commission (2016) SCCC 11.
11
FH v McDougall (2008) 3 SCR 41
c. A specic order for scrutiny of the rejected and spoilt votes.
d. A declaration that the rejected and spoilt votes count toward the total votes cast and in the
computation of the nal tally of the Presidential Election.
e. An Order for scrutiny and audit of all the returns of the Presidential Election including but
not limited to Forms 34A, 34B and 34C.
f. An Order for scrutiny and audit of the system and technology used by the 1st respondent in
the Presidential Election including but not limited to the KIEMS Kits, the Server(s); website/
portal.
g. A declaration that the non-compliance, irregularities and improprieties in the Presidential

Election were substantial and signicant that they aected the result thereof.
h. A declaration that all the votes aected by each and all the irregularities are invalid and should
be struck o from the nal tally and computation of the Presidential Election.
i. A declaration that the Presidential election held on August 8, 2017 was not conducted in
accordance with the Constitution and the applicable law rendering the declared result invalid,
null and void.
j. A declaration that the 3rd respondent was not validly declared as the President elect and that
the declaration is invalid, null and void.
k. An order directing the 1st respondent to organize and conduct a fresh Presidential Election in
strict conformity with the Constitution and the Elections Act.
l. A declaration that each and all of the respondents jointly and severally committed election
irregularities.
m. Costs of the petition.
n. Any other orders that the honourable court may deem just and t to grant.
E. Respondents And 2nd Interested Party‘s Case

51. On August 24, 2017, the 1st and 2nd respondents led a joint response, while the 3rd respondent
led a separate response to the petition. They all opposed the petition and urged the court to nd that
IEBC conducted a free, fair and credible election in which the 1st petitioner garnered 6,762,224 votes,
being 44.74% of the votes case, while the 3rd respondent garnered 8,203,290 votes being 54.27% of the
votes cast. In addition, the 1st petitioner and the 3rd respondent also garnered at least 25% of the total
votes cast in 29 and 35 counties, respectively. These are the results that the 2nd respondent declared
on August 8, 2017, as deponed in his supporting adavit.
i. Violation of the Principles Set Out in the Constitution, Electoral Laws and Regulations
52. It is the respondents‘ case that the presidential election was conducted in accordance with the
Constitution, the IEBC Act, the Elections Act, the regulations thereunder, and all other relevant
provisions of the law. Further, that the presidential election process was backed by an elaborate electoral
management system supported by various electoral laws, which included several layers of safeguards
to ensure an open, transparent, participatory and accountable system so as to guarantee free and fair
elections pursuant to articles 81 and 86 of the Constitution.
53. In addition, the 1st respondent submitted that it had put in place a strategic plan (2015- 2020) setting
out key priorities for strengthening electoral systems and processes in Kenya. It also had a two year
election operation plan, 2015-2017 as a roadmap towards free, fair and credible 2017 election. In
execution of this plan, Mr Muite, learned counsel for IEBC, submitted that the presidential election
was conducted in accordance with the Constitution and the people‘s sovereign will in article 1 thereof
was duly realized. Learned counsel urged that even observers during the period found no fault in the
conduct of the election and it would be a wrong interpretation of Article 1 of the Constitution if this
court nullied the election.
54. Citing the advisory opinion In the Matter of the Principle of Gender Representation in the National
Assembly and the Senate12, the 1st and 2nd respondents submitted that the election of a president is a
process, involving a plurality of stages, beginning from party primaries elections to the nal election
leading to the identication of a president elect. These processes were adhered to, according to them.
55. On his part, the 3rd respondent agreed with the 1st and 2nd respondents‘ contention that the
petitioners had not demonstrated, orally or by documentary evidence, how the conduct of the election
failed to comply with the governing law. In that context, he cited the case of Bush v Gore13 and urged that
the court in determining the petition before it, should keep in mind the role of the court in presidential
election petitions. The Supreme Court of the United States of America in that case had held:
… None are more conscious of the vital limits on judicial authority than are the members
of this court, and none stand more in admiration of the Constitution‘s design to leave
the selection of the President to the people, through their legislatures, and to the political
sphere…
56. Consequently, all the respondents dismissed the petitioners‘ contention that IEBC abdicated its role
and duty and averred that IEBC discharged its mandate in accordance with the Constitution and
applicable body of electoral laws and the sovereign power of the people was exercised through the
presidential election held on August 8, 2017. It was their case therefore that the results were accurately
tallied, collated and declared in accordance with article 138(10) of the Constitution.
ii. Failure in the process of relay and transmission of results

57. The respondents submitted that, contrary to the allegations of the petitioners, the process of relay and
transmission of results from the polling stations to the CTC and to the NTC, and from the CTC to the
NTC was simple, accurate, veriable, secure, accountable, transparent, open and prompt as required
by article 81 (e) (iv) and (v) of the Constitution. They also urged that the transmission of results was in
strict accord with Section 39(1C) of the Elections Act and in conformity with the Maina Kiai case.
58. It was also submitted that the completion of the transmission of the image of Forms 34A was
dependent on the availability of 3G or 4G network coverage. Hence, in respect of areas lacking
3G or 4G network coverage, there were established alternative mechanisms to ensure completion in
transmission of the image of the Form 34A.
59. The 1st respondent relied on the adavit of James Muhati who averred that following a mapping
exercise carried out by the Commission and analysis by Mobile Network Operators (MNOs) it was
ascertained that about 11,155 polling stations within the country were not eectively covered by either
3G or 4G network and this communication was sent out to the public vide a notice dated August 6,
12
In the Matter of the Principle of Gender Representation in the National Assembly and the Senate Reference No 2 of 2012; [2012] eKLR
13
Bush v Gore 531 US 98 (2000)
2017. He stated that it thus became necessary to instruct presiding ocers to ensure that they move to
points where there was network coverage or in the alternative to constituency tallying centres in order
to transmit results. He further stated that the Commission was nevertheless able to avail all Forms 34A
in the public portal by the date of declaration of results.
60. On the basis of the averments in the adavit of Winnie Guchu, therefore, it was contended for the
3rd respondent that there was no legal obligation that the data entered into the KIEMS kits must
be sent simultaneously with images of the Forms 34A. Consequently, no legal sanction ought to
attach where there is a failure to simultaneously transmit the result data and the scanned image of
the Form 34A. Accordingly, the 3rd respondent dismissed the petitioners‘ contention that there was a
legitimate expectation that the data and the Forms would be transmitted concurrently. In this regard,
Ms Guchu deponed that under section 44A of the Elections Act, IEBC has a statutory discretion
to use a complementary mechanism where technology either fails to work or is unable to meet the
constitutional threshold of what a free and fair election should constitute.
61. Mr Nyamondi, counsel for the 1st respondent outlined to the court the mode of the transmission
process of the results and submitted that after the manual lling in of the Form 34A, the Presiding
Ocers then keyed in the results into the KIEMS kit, took the image of the Form 34A and then
simultaneously transmitted the same to the constituency and national tallying centres. In his view
however, the gures in the KIEMS kit had no legal status, and they did not go into the determination
of the outcome of the result which could only be authenticated by Forms 34A and 34C.
62. The respondents denied the petitioners‘ allegation that the results entered into the KIEMS kits varied
from the results on Forms 34A in respect of more than 10,000 polling stations and further urged that
the statistics‘ entered into the KIEMS kits was not the result and is therefore not comparable with the
results recorded in Forms 34A. And that if there were any discrepancies in the statistics entered in the
KIEMS kits, the same would be as a result of inadvertent human errors during the transfer of gures
from Forms 34A to the KIEMS kits; and if there were, they did not materially aect the outcome of
the presidential elections.
63. Upon transmission, it was submitted by the 1st and 2nd respondents that in accordance with section
39(1C) of the Elections Act, IEBC published the images of Forms 34A and 34B on its public portal.
They contended in that regard that the petitioners confused the public portal where the Forms 34A
and 34B were published with the statistics‘ that were displayed by the media and instead they should
have understood that all polling stations transmitted the statistics of the results through KIEMS kits
accompanied by the electronic image of Forms 34A, and that at the time of declaration of the results,
the 1st and 2nd respondents had in their possession all the requisite forMs Mr Nyamodi said that what
he called statistics were variously called data in the respondents‘ submissions.
64. The 1st and 2nd respondents further relied on the adavits of Wafula Chebukati and Immaculate
Kassait to make the point that the declaration of results was based on the results contained in Forms
34B from each of the 290 constituencies and the diaspora as Form 34B is an aggregation of Forms 34A
in each constituency. That therefore the results declared by IEBC were not aected by any variances or
errors that may have occurred at the point of data entry into KIEMS kits.
65. It was also the respondents‘ case that the role of the constituency returning ocer as set out in
regulation 83 (1) of the Elections (General) Regulations is limited to tallying and verifying the count
of the votes as contained in Forms 34A from the polling stations and collating them in Form 34B.
Thereafter he declares the results and delivers to IEBC such results at the NTC. On the other hand,
the 2nd respondent‘s role is to tally and collate the results received at the NTC in Form 34C pursuant
to Regulation 83 (2). In that context, in his supporting adavit, the 2nd respondent deposed that
between 8th and August 11, 2017, he was present at the NTC where he tallied and validated the Forms
34B that were being electronically transmitted by the constituency returning ocers and upon receipt
of these Forms 34B, he proceeded to execute his mandate as by law provided.
66. Mr Ezra Chiloba on his part deposed that IEBC unsuccessfully defended the case of Kenneth Otieno
v Attorney-General & another14, which declared section 44(8) of the Elections Act unconstitutional for
establishing a technical committee to oversee the adoption of technology and implement use of that
technology in the conduct of elections. The court held that, the composition of the committee and
the functions given to it threatened the structural independence of IEBC and hence was in conict
with article 88 and 249(2) of the Constitution. The 1st respondent further asserts that it is unfair and
malicious to accuse IEBC of ling Collins Kipchumba Tallam v the Attorney-General15, to which it was
not a party.
67. In his adavit, Mr James Muhati refuted the petitioners‘ claim that IEBC did not verify the KIEMS
system and instead deposed that the Commission undertook the verication exercise between May
10th and June 10th 2017. It was his further testimony therefore that IEBC fully and successfully
deployed the use of ICT in the following manner: First, the Commission developed and implemented
a policy to regulate the progressive use of technology in the process as required by section 44(2) of the
Elections Act. Secondly, prior to deployment of KIEMS, the Commission undertook a series of tests
including a public test carried out on June 9, 2017, (60 days before the elections) and a simulation
done on August 2, 2017. Lastly, as part of preparations for the deployment and use of ICT in the
elections, the Commission developed a robust training manual and schedule aimed at building capacity
and competence of all its sta members which included training of candidates‘ agents on the KIEMS
systeMs
68. Replying to the petitioners‘ allegations, which she termed mischievous that the results started
streaming in at 5.07 pm, very soon after the closure of polling stations, Immaculate Kassait
deposed that in polling stations such as Boyani Primary School, Tsimba Golini Ward, Matuga
Constituency, Arabrow, Benanre Ward, Wajir South Constituency, Ya Algana Dukana Ward, North
Horr Constituency and Lowangina Primary School, Muthara Ward, Tigania East Constituency
among others, with between 1-10 registered voters, it was possible to count and tally votes within a
short period of time after closure of polling.
69. Equally the 3rd respondent, through the adavit of Davis Chirchir, submitted that the posting of
results as above was not irregular and gave the example of polling stations within Narok Main Prison
where results were transmitted between the hours of 5.08pm, 5.09pm, 5.12pm and 5.14pm. Counsel
for the 3rd Respondent, Mr Ngatia contended in that regard that rather than be castigated, IEBC
should be commended for such promptness and eciency of transmission of results.
iii. Intimidation and Improper Inuence or Corruption

70. With regard to the allegation that the Commission failed to take steps against the 3rd respondent for
alleged breach of the provisions of section 14 of the Election Offences Act, Mr Chiloba deposed that on
June 21, 2017, he wrote a letter to the Director of Public Prosecutions (DPP) informing him of the
alleged breaches for his action. The DPP in turn directed the Director of Criminal investigations to
take action and therefore IEBC cannot be accused of not having taken appropriate action when the
complaint was made to it.
14
Kenneth Otieno v Attorney-General & another, Petition 127 of 2017; [2017] eKLR
15
Collins Kipchumba Tallam v the Attorney-General, Petition 415 of 2016;
71. The 3rd respondent also sought to disabuse the petitioners‘ allegations of intimidation of voters and
in that regard Mr Ngatia submitted that the 3rd respondent, on receiving intelligence information
reports from among others, Dr Karanja Kibicho, Principal Secretary, simply warned Chiefs against
campaigning for any politician as they were public servants of whom impartiality was expected.
Counsel thus argued that a warning to people not to engage in politics is not an act of intimidation
as alleged. Mr Ngatia also wondered how the voters could have been intimidated when the petitioner
garnered over 130,000 votes against the 3rd respondent‘s 27, 000 votes in Makueni County and in any
case, there is no evidence of action having been taken against any of those Chiefs for taking sides in
politics
72. As regards the payments made to IDPs in Kisii County, Mr Ngatia, referring to the adavit of Dr
Kibicho submitted that the settlement of IDPs is a continuous process being undertaken by a body
known as the National Consultative Coordination Committee on IDPs (NCCC) established under
the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities
Act, 2012 and the funds alluded to were approved for disbursement by Parliament and not the
3rd respondent. Counsel further argued that there is no evidence that any of the beneciaries were
inuenced by that payment to vote for the 3rd respondent.
73. In her adavit, Winnie Guchu also refuted the claim that the 3rd respondent advertised Government
projects. She instead stated that there is no provision in the Constitution that requires ongoing
government programs to be suspended during the election period. And that because article 35 of the
Constitution guarantees the right to information, what is called advertisement is actually information
made available to members of the public through the various available channels. In any case, that there
are two pending cases in the High Court namely; Apollo Mboya v Attorney General & 3 others16 and
Jack Munialo & 12 others v Attorney General and Independent Electoral and Boundaries Commission,17
challenging the constitutionality of Section 14 of the Election Offences Act and that therefore therein
is the right forum for the petitioners to raise their complaints.
iv Substantial Non-compliance, Irregularities and Improprieties that Aected the Results

74. The respondents submitted that the alleged inaccuracies and inconsistencies in Forms 34A and 34B
were minor, inadvertent and in their totality did not materially aect the declared results. They thus
urged the court to nd that the petitioners have not substantiated the claim that the said irregularities
aected at least 7 million votes.
75. The respondents‘ case in this regard was supported by the 2nd interested party, Prof Wainaina who,
through his counsel, Mr Kinyanjui, submitted that the alleged irregularities were not proved and did
not aect the results in any event.
i. Voting, Counting and Tabulation of Results

76. It was urged by the respondents on the above issue that the results from the polling stations and the
constituency tallying centres were counted, tabulated and accurately collated in compliance with article
86 (b) and (c) of the Constitution as read together with the Elections Act. The respondents argued
therefore that there were no inconsistencies in the votes cast as captured in Form 34A and Form 34B
and averred that the results in Forms 34B included all polling stations within constituencies.
16
Apollo Mboya v Attorney General & 3 others, Petition 162 of 2017.
17
Jack Munialo & 12 others v Attorney General and Independent Electoral and Boundaries Commission, Petition 182 of 2017.
77. The 3rd respondent, through the adavit of Winnie Guchu also contended that upon the conclusion
of voting, the counting exercise commenced in the presence of all agents present, observers, police
ocers and all other authorized persons. She further stated that according to the Elections Observation
Group (ELOG), a local observer group, which deployed one of the largest observer delegates, the
petitioners had very good representation of agents, and even where agents failed to sign the prescribed
Forms, that does not on itself invalidate the results as provided for under regulations 62(3) and 79(6)
of the Elections (General) Regulations, 2012.
vi. Unprecedented and contradictory quantity of rejected votes

78. According to the 1st and 2nd respondents, the rejected votes did not account for 2.6% of the total
votes cast as contended by the petitioners. They submitted instead that the total number of rejected
ballots was 81,685 as declared in Form34C, a percentage of 0.54% of the votes cast. They thus urged
that the rejected ballots were properly excluded from valid votes in accordance with the law and this
court‘s decision in the 2013 Raila Odinga case. They therefore reiterated that the gures on the public
portal and media were not results but statistics hence cannot be taken as proof of rejected votes. Mr
Chiloba further deposed that any variance between the actual number of rejected votes on Form 34C
and the public portal were as a result of human error and did not aect signicantly the outcome of
the election.
79. In response to the petitioners‘ contention that the Supreme Court ought to re-visit its decision in the
2013 Raila Odinga case on rejected votes, the 1st and 2nd respondents submitted that in arriving at
that decision, the court considered the relevant provisions of the Constitution, the Elections Act and
Regulations, hence that decision was a correct interpretation of the law. All respondents thus urged the
court not to depart from it.
80. In her adavit, Winnie Guchu further stated that in a few polling stations, presiding ocers inserted
the number of registered voters in the column reserved for rejected votes but the correct numbers of
votes each candidate garnered were not aected. However, she also contended that since the nal results
were declared on the basis of the 290 Forms 34B which had been compiled from the physical Forms
34A, any error of transmission did not occur and/or aect the results.
vii. Interpretation and Application of Section 83 of the Elections Act
81. The 1st and 2nd respondents submitted that preponderance of legal authorities shows that, the non-
compliance with the law alone, without evidence that the electoral process or the results had been
materially or fundamentally aected is not a basis for invalidating an electoral outcome. Some of the
cases cited were the 2013 Raila Odinga case, Hassan Ali Joho v Nyange & another18, and John Kiarie
Waweru v Beth Wambui Mugo & 2 others19. Comparatively, they cited the Botswana case of Pilane
v Molomo & another20, and the Nigerian cases of Buhari v Obasanjo21 and Olusola Adeyeye v Simeon
Oduoye & others22.
18
Hassan Ali Joho v Nyange & another [2008] 3 KLR (EP) 500
19
John Kiarie Waweru v Beth Wambui Mugo & 2 others, Petition 13 of 2008; [2008] eKLR
20
Pilane v Molomo & another (1990) BLR 214 (HC)
21
Buhari v Obasanjo (2003) 17 NWLR (PT 850) 587; (2003) 11 SC 74
22
Olusola Adeyeye v Simeon Oduoye & other (2010) LPELR_CA/I/EPT/NA/67/08
82. It was further urged by the respondents that this court should not render section 83 of the Act
unconstitutional since such an interpretation as advanced by the petitioners would derogate from the
well laid down and solid foundation of law and jurisprudence of this court in the 2013 Raila Odinga
case. Through counsel Mr Wekesa, it was submitted for the 1st respondent that the 2013 Raila Odinga
case is good law as was subsequently adopted and applied by this court in the Zacharia Okoth Obado v
Edward Akong‘o Oyugi & 2 others,23 and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others.24
83. The 3rd respondent in addition to the above urged that a party seeking the nullication of a presidential
election, bears the burden of proving that not only was there non-compliance with the election law
but that the non-compliance also aected the results of the election. He thus submitted that the only
way the petitioners can impugn the results reected in Forms 34A and 34B is through demonstrating
either that legal votes were rejected or that illegal votes were allowed and that this had an eect on the
election. In support of his proposition, the 2013 Raila Odinga case and other comparative cases from
the Supreme Court of Uganda, in the case of Amama Mbabazi v Yoweri Kaguta Museveni & 2 others,25
the Canadian case of Opitz v Wrzesnewskj26 and the Nigerian case of Abubakar v Yar‘adua.27
84. Through Mr, Ahmednassir SC, it was submitted for the 3rd respondent that the 2013 Raila Odinga
case is a bedrock of precedent and should not be departed from. He also urged that the Supreme Court
was created to develop jurisprudence that was coherent and sound and that the 2013 Raila Odinga case
has settled the law as regards elections in Kenya on various aspects such as of burden and standard of
proof and interpretation of Section 83 aforesaid. Further, that before the establishment of the Supreme
Court, the electoral legal regime in the country was in disarray and therefore this court should strictly
adhere to the doctrine of stare decisis for consistency of its jurisprudence.
85. It was also the 3rd respondent‘s submission that as a consequence of the many court cases led by
NASA (some of which are set out in the adavit of Davis Chirchir) the courts made pronouncements
on various specic aspects of elections, thereby checking the manner in which IEBC was to conduct
the 2017 election.
86. Mr Kinyanjui, for the 2nd interested party, supported the respondents‘ position and urged that no
sucient evidence had been tendered to oust the prevailing interpretation of Section 83 of the Elections
Act. Counsel also argued that any non-compliance with the law ought not to invalidate the election
if the court is satised that the election was substantially conducted in accordance with the principles
laid down in the Constitution.
viii. Alleged Specic Irregularities

87. IEBC refuted the petitioners‘ claim that it established secret and un-gazetted polling stations. It
contended in that regard that pursuant to regulation 7 (1)(c) of the Election (General) Regulations
2012, it published in Gazette Notice Number 6396 of June 26, 2017 specifying the polling stations
established in each constituency. The claim that results from any un-gazetted polling station were
included in the nal tally are therefore baseless, it submitted.
23
Zacharia Okoth Obado v Edward Akong‘o Oyugi & 2 others, Supreme Court Petition 4 of 2014; [2014] eKLR
24
Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court Petition 2B of 2014; [2014] eKLR.
25
Amama Mbabazi v Yoweri Kaguta Museveni & 2 others, Petition 1 of 2016; [2016] UGSC 3
26
Opitz v Wrzesnewskj (2012) SCC 55-2012-10-256
27
Abubakar v Yar‘adua (2009) All FWLR (Petition 457) 1SC
88. IEBC also stated that all Forms 34B were executed by duly gazetted and accredited constituency
returning ocers in accordance with the applicable Regulations. It contended in that context that
it complied with the requirements of regulation 5 of the Election (General) Regulations, 2012 and
provided a list of persons proposed for appointment as presiding ocers to political parties through
the oce of the Registrar of Political Parties. It is therefore not correct that a signicant number of
returns were signed by strangers, so it submitted.
89. It is furthermore the respondents‘ case that all Forms 34A and 34B were signed and/or stamped as
required under the law. They thus denied that a number of Forms 34B did not indicate the names of
the returning ocers and a number did not bear IEBC‘s stamp or authentication stamp as alleged by
the petitioners. They also denied the allegation that a substantial number of Forms 34A and Forms
34B do not bear the signatures of the candidates‘ agents or the reason for their refusal to sign the forms
as is the law. In any event, it was further urged, the refusal by the agents to sign the said forms did not
invalidate the results announced. In that regard, they cited the Ghanaian Supreme Court Case of Nana
Addo Dankwa Akufo- Addo & 3 others v John Dramani Mahama & 2 others28.
90. IEBC also dismissed as unfounded the allegation that in some instances one person was the presiding
ocer in a considerable number of polling stations. It submitted in that regard that it appointed
presiding ocers in respect of each of the polling stations in the country as by law prescribed.
91. As regards lack of handing over notes in the forms, the respondents contended that there is no
obligation under Regulation 87 Election (General) Regulations, 2012 for the constituency returning
ocers to indicate the number of Forms 34A handed over to them and that based on the Maina
Kiai decision, the returning ocers were exempted from physically availing the statutory forms at the
NTC. Further, it was urged that the integrity of Forms 34A and Forms 34B was not compromised
and the results contained therein are valid. IEBC also denied that it manufactured any results or that
14,078 Forms 34A have fatal and irredeemable irregularities. It asserted instead that the results of the
presidential election were declared on the basis of the aggregate of Forms 34B which reected the will
of the people.
92. As regards the contention by the petitioners on lack of security features on the statutory forms, it was
IEBC‘s submission that all Forms 34A and 34B issued to presiding and returning ocers had serial
numbers, barcodes and the IEBC watermarks. In addition that Forms 34A were carbonated to ensure
that only one Form was lled by the presiding ocer to generate 6 copies. These security features were
meant to help authenticate the results at the polling centres before transmission.
93. In her adavit, Ms Immaculate Kassait added that IEBC developed standards for its electoral materials
prior to their procurement. The standards included specic security features for each ballot paper
and statutory form in order to prevent duplication, misuse, piracy, fraud, counterfeiting and to
improve controls. She explained that all the ballot papers and statutory forms used in the August
8, 2017 election contained certain and specic security features. These features included: guilloche
patterns against which all background colours on the declaration forms had been printed, anti-
copy patterns, watermarks, micro text, tapered serialization, invisible UV printing, polling station
data personalization, self- carbonating element and barcodes. In addition, each ballot paper included
dierent colour coding of the background.
94. Mr Muite SC submitting on behalf of IEBC, urged that in any case, though there was no legal
requirement for the Forms to have security features and IEBC only introduced them suo motu out
of abundant caution. That therefore no breach of any law was committed where the same features
28
Nana Addo Dankwa Akufo- Addo & 3 others v John Dramani Mahama & 2 others, Writ No J 1/6/2013
were found missing. Counsel further questioned why agents of both petitioners and 3rd respondent
proceeded to sign on the Forms if the security features were a legal prerequisite yet in some instances
they were missing. He argued in that context that one cannot execute a document and turn back and
say it did not have security features.
95. On the allegation that legitimate petitioners‘ agents were thrown out of some polling stations, it was
the respondents‘ case that none of these claims are substantiated and no particulars whatsoever were
provided as required by law. It was submitted specically that the allegations made by one Mr Wamuru,
in his adavit in support of the petition which were, at any rate not reported to the police, were of a
general nature, false and mischievous. That the petitioners in any event neither identied the agents
who were allegedly ejected nor the presiding ocer(s) who allegedly ejected them. To the contrary,
Immaculate Kassait and Marykaren Kigen deposed in their adavits that the petitioners‘ agents duly
executed Forms 34A in the identied polling stations signifying the fact that there were no anomalies
detected.
96. Regarding the petitioners‘ alleged constant 11% dierence between the 1st petitioner and the 3rd
respondent‘s election results, Immaculate Kassait deposed that the percentage ranged between a low
of 9.095 to a high of 25.573. Hence there was no pre-conceived percentage that was constant.
97. On his part, the 3rd respondent, through counsel Mr Ngatia, submitted that there was no pre-
convinced formula used in the computation of the results, but that the results were streaming in, in
a manner peculiar to the respective polling stations. He urged therefore that if at all there was any
problem in the transmission, the fall back was available and includes a physical examination of all Forms
34A.
98. In summation, the 1st and 2nd respondents contended that if indeed there were any irregularities as
alleged, the same were administrative, human, clerical, transcription, transposition, computation, data
input, mathematical and erroneous recording errors which would not in any way aect the results.
In this regard, they relied on the adavits sworn by Rebeccah Abwaku, Samson Ojiem, Manco Mark
Gikaro, David Kipkemoi, Julius Meja Okeyo, Moses Nyongesa Simiyu and Gilbert Kipchirchir. These
were presiding and returning ocers who deponed to having committed these minor administrative
irregularities due to fatigue and inadvertence. They urged that the said irregularities were not pre-
meditated and should be excused.
99. In reply to the depositions made by Ms Olga Karani in her adavit, Winnie Guchu deposed that they
are of such a generalized nature that it is impossible to respond to them with any specicity. She stated
for example that the IEBC Commissioners alleged to have committed improprieties and illegalities
are not identied and neither are the presiding ocers named said to have done the same nor their
polling stations identied. Furthermore, she stated that Ms Karani did not state what occurrences and
events happened in Migori, Homabay and Kisumu County that would have aected the integrity of the
impugned election. Moreover, she did not state the names of persons missing from the voters register.
Further, she disputed Ms Karani‘s testimony that as at August 10, 2017, very few Forms 34A were
available. On the contrary, the deponent stated that as at midnight on August 9, 2017, the information
availed to political parties through the IEBC Application Program Interface showed that 39,426 Forms
34A results had been received.
100. In a nutshell, the respondents submitted that the petition is devoid of merit and should be dismissed
with costs.
F. Amici Submissions
i. Attorney-General
101. The Attorney General was enjoined in this petition as the 1st amicus curiae. In his amicus brief he
delineated the following questions for submission:
"i. What is the proper constitutional and legal standard applicable to the conduct of presidential
elections in Kenya as envisaged under both articles 81 and 86 of the Constitution.
ii. What were the changes to the elections infrastructure post 2013 and their eect on the conduct
of presidential elections: to wit, the Elections Laws (Amendment) Act No 36 of 2016 and
Elections Laws (Amendment) Law No 1 of 2017.
iii. How should the court treat rejected/spoilt votes in respect to votes cast in terms of article
138(4) of the Constitution.
iv What is the proper constitutional and legal threshold for invalidating a presidential election
under article 140 of the Constitution.
(iv) What remedies can the court grant in determining a presidential election petition under article
140 of the Constitution."
102. On the rst issue, the Attorney-General submitted that the determination of the Presidential election
dispute should be made within the context of articles 81 and 86 of the Constitution which sets out both
the qualitative and quantitative principles applicable to their conduct, where the qualitative context
under articles 81(e) is as good as the process leading to those results, while quantitatively, the court is
called upon to deal with numbers and gures regarding the threshold for declaration of Presidential
results envisaged under article 138(4) of the Constitution.
103. Citing the scholarly text of Hon Justice (Prof) Otieno-Odek29 of the Court of Appeal, he submitted
that the qualitative requirements appraise the entire electoral process prior to and during voting,
evaluating whether the environment was free and fair within the meaning of article 81 (e). He thus
urged that substantial non- compliance with this requirement renders the entire electoral results void.
For that proposition, he cited the case of Winnie Babihunga v Masiko Winnie Komuhamhia & others30
where it was stated;
The quantitative test was said to be most relevant where numbers and gures are in question
whereas the qualitative test in most suitablewhere the quality of the entire process is
questioned and the court has to determine whether or not the election was free and fair.
104. He further urged that determining whether an election was free and fair taking into account principles
of impartiality, neutrality, eciency, accuracy and accountability involves the interpretation of articles
81 (e) (v) and 86 of the Constitution. Ideally this means, he urged, that the principles listed under Article
81 are meant to safeguard and promote the centrality of the voter as captured under Article 38 of
the Constitution which principles, he submitted, are universal and articulated in various international
instruments.
29
Paper by Hon Justice (Prof) Otieno-Odek titled Election Technology Law and the Concept of "Did the irregularity affect the Results of
the Election?"
30
Winnie Babihunga v Masiko Winnie Komuhamhia & others, HTC-OO
105. The Attorney General further cited the decision of the constitutional Court of South Africa in Richter
v Minister for Home Affairs & others31 where it was pointed out that the right to vote is symbolic
to citizenship and has constitutional importance, the exercise of which is a crucial working part of
democracy. Accordingly, the court stated that we should approach any case concerning the right to
vote mindful of the symbolic value of the right to vote as well as the deep, democratic value that lies in
a citizenry conscious of its civil responsibilities and willing to take the trouble of exercising the right.
106. He also adopted the decision of the Supreme Court of Uganda in the case of Rtd Col Dr Kiza Besigye v
Yoweri Kaguta Museveni And Electoral Commission32, where the Court dened free and fair elections
to be where, inter alia, the electoral process is free from intimidation, bribery, violence, coercion, and
results are announced in good time.
107. Secondly, as regards the changes to the electoral law, he submitted that following the recommendation
of a Bi-Partisan Joint Parliamentary Committee, the various amendments to election law, geared
towards enhancing the conduct of free and fair elections, were made. They included Sections 39 and
44 of the Elections Act which were amended to provide for the manner in which Presidential election
results would be declared and published after close of polling and the introduction of the use of
technology in transmission of results. That regulation 79 of the Elections (General) Regulations as
amended by L/N No 72/2017 also introduced Forms 34A, B, and C for the purposes of declaration
of Presidential election results while Regulation 83 was amended to introduce regulation 83(2) which
provides that the Chairperson of the Commission shall tally and verify the results at the NTC. The
KIEMS system to be introduced under Section 44 further had a complementary manual system (which
was upheld by the Court of Appeal in the case of National Super Alliance (NASA) Kenya v The
Independent Electoral and Boundaries Commission & 2 others.33
108. It was his submission that the above reforms were made in an eort to ensure that the technology,
restricted to biometric voter registration, biometric voter identication and electric result transmission
system, would pave way for free and fair elections administered in an ecient, simple, accurate,
veriable, secure accountable and transparent manner.
109. Thirdly, in regard to rejected/spoilt votes cast, the Attorney General submitted that in terms of article
138 (4) of the Constitution, the phenomena‘ of rejected votes is still a continuing concern in developing
jurisprudence in Kenya but nonetheless he urged that the court‘s decision in the 2013 Raila Odinga
case on the subject case remains good law and should not be departed from.
110. Comparatively, he referred to sections 47-50 of the Representation of the People‘s Act 1983 of the United
Kingdom, in urging that a vote is included in deciding the election of a candidate only where a clear
preference for that candidate is indicated; in New Zealand, sections 178- 179 of the Electoral Act 1993
makes a distinction between a vote and an informal vote where informal votes are rejected and not
included in the vote; and nally in South Africa where Section 47(3) of the Electoral Act 1993 provides
for the procedure for the rejection of votes and regulation 25 of the Election Regulation 2004, which
indicates that rejected ballots are not counted as part of the votes.
111. Alluding to the views of Hon Justice (Prof) Otieno-Odek, he postulated that the rationale for excluding
a rejected or spoilt ballot is exemplied as being where the will of the voter is not expressed and as such
the vote holds no weight. He thus urged that the will of the voter is ring-fenced by the provisions of
31
Richter v Minister for Home Affairs & others CCT 09/09 [2009] ZACC 3; 2009 (3) Sa 615 (CC)
32
Rtd Col Dr Kiza Besigye v Yoweri Kaguta Museveni And Electoral Commission, Preseidential Petition 1 of 2001.
33
National Super Alliance (NASA) Kenya v The Independent Electoral and Boundaries Commission & 2 others, Civil Appeal 258 of 2017.
article 38 (2) of the Constitution which gives every citizen the right to free, fair and regular elections,
based on universal surage and the free expression of the will of the electors.
112. The fourth issue the Attorney General submitted on was the proper constitutional and legal threshold
for invalidating a presidential election under Article 140 of the Constitution. He submitted on that
issue that this should be considered within the context of the applicable legal and evidential burden of
proof, the standard of proof and the irregularity in issue.
113. It was his further submission that there exists a rebuttable presumption in law as to the validity of
election results by returning ocers and the legal and evidentiary burden lies with he who seeks to
upset it. In that regard,he cited the Supreme court of India in Jeet Mohinder Singh v Harmoniser Singh
Jassi34, where the Court upheld the presumption of validity of election results. He also cited the 2013
Raila Odinga case in urging that he who alleges non – conformity with electoral law must not only
prove non-compliance, but must also show that such non - compliance aected the validity of the
elections. This burden of proof, he submitted, is captured in section 107 as read together with section
109 of the Evidence Act and must be discharged to the required standard.
114. As regards standard of proof, he submitted that presidential elections, being sui generis in character,
the standard of proof varies between the balance of probability to beyond reasonable doubt depending
on the allegation of irregularity or non – compliance with the electoral laws in issue. He cited the case
of Simmons v Khan35 in support of that proposition.
115. The Attorney General in addition urged that section 83 of the Elections Act captured the general
standard in our jurisdiction. In his view, and citing the 2013 Raila Odinga case, the threshold required
to disturb an election is one where evidence discloses profound irregularities in the management of the
electoral process, and non-compliance that aected the validity of the election.
116. Comparatively, the Attorney General cited the Supreme Court of Ghana in Nana Addo Dankwa
Akufo Addo & Others v John Dramani Mahma & 2 Others,36 where the position of that court was
that elections ought not to be held void by reasons of transgressions of the law without any corrupt
motive by the returning ocer or his subordinate, and where the court is satised that the election
was, notwithstanding those transgressions, a real election and in substance was conducted under the
existing election law. Also cited was Woodward v Sarsons37 where the court was of the opinion that an
election is declared void by the common law applicable, where the tribunal asked to void it is satised
that there was no real election at all or that the election was not really conducted under the subsisting
election law and that there were mishaps that prevented a majority from electing a preferred candidate.
117. Lastly on remedies, the Hon Attorney General submitted that while article 140 requires the court to
declare the election valid or invalid, no other reliefs are provided for. however, he urged that article
163(8) mandates the Supreme Court to make rules to exercise its jurisdiction. In this regard, he
submitted that the Supreme Court (Presidential Election Petition) Rules, 2017 set out the powers of the
court i.e dismissing the petition; declaring the election of the president-elect to be valid or invalid; or
invalidating the declaration made by IEBC.
34
Jeet Mohinder Singh v Harmoniser Singh Jassi, 1999 Supp (4) Scr 33; AIR 2000 256
35
Simmons v Khan EWHC B4 (QB) 2008.
36
Nana Addo Dankwa Akufo Addo & Others v John Dramani Mahma & 2 others, writ No J 1/6/2013
37
Woodward v Sarsons (1875) LR 10
118. He submitted further that considering that article 140(3) of the Constitution provides for only two
reliefs, declaration of validity or invalidity of presidential election results, the court has to issue reliefs/
remedies within the connes of article 140. The reliefs must be conned within the parameters of the
law. He cited the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2
others38 and the 2013 Raila Odinga case in urging the Court to be cautious of its jurisdictional limits.
And thus submitted that the Court‘s nal remedy is restricted to a declaration of validity or invalidity,
which they can only arm or annul.
119. Finally he urged that incidental to the nal order, the court has inherent power to order for scrutiny of
votes in order to determine the integrity and credibility of an electoral process as it suo motu invoked
and ordered for the scrutiny of all Forms 34 and 36 in the 2013 Raila Odinga case.
ii. The Law Society of Kenya

120. The Law Society of Kenya (LSK) was admitted as the 2nd amicus curiae and limited by the court
to make submissions in regard to the interpretation of section 83 of the Elections Act. Teaming up
with Mr Ombati, Mr Mwenesi, learned counsel for the LSK, emphasized the centrality of a voter in a
democratic form of government and urged that in interpreting the meaning and scope of section 83,
this court should consider its history and constitutionality as well as its interpretation in the 2013 Raila
Odinga case. The history of section 83 was thus traced to section 28 of the National Assembly and
Presidential Elections Act (repealed) all the way to the English Ballot Act 1872. Reference was also made
to the decision in Morgan v Simpson39 where the court stated that an election conducted substantially
in accordance with the law will not be invalidated by a breach of the rules or a mistake at the polls
which did not aect the result.
121. The Society urged that Section 83 was not straightforward and had posed diculties in judicial
interpretation as to what constitutes an administrative irregularity which can invalidate an election. It
was submitted that in interpreting Section 83 of the Elections Act in the 2013 Raila Odinga case, this
court laid out a broad test: whether an alleged breach of law negates or distorts the expression of the
people‘s electoral intent. It was contended in that regard that, from the court‘s interpretation, breach
of the law, however grave, is not by itself sucient to invalidate an election, where it is not shown that
the breach negated the voters‘ intent.
122. Counsel for LSK argued that the application of section 83 is limited in content and scope and only
applies where the validity of an election is restricted to irregularities. He thus sought to distinguish
between an illegality and an irregularity by contending that the former constitutes a violation of
the Constitution or a substantive statutory or common law provision. Accordingly, it was urged that
Section 83 has no application where there is a violation of the Constitution or a substantive provision
of election laws and Regulations. That it was only applicable where the validity of an election does
not concern a violation of the Constitution or substantive statutory provision, but is applicable where
there are minor irregularities which do not aect the overall outcome of the election. Counsel urged
that giving the provision a dierent meaning leads to an absurdity that it is acceptable to violate the
Constitution or substantive statutory law provided that it cannot be established how those violations
aected the results.
123. Further, it was submitted on behalf of the Society that the repealed Constitution did not have the
equivalent of articles 81 and 86 of the Constitution 2010 and therefore any interpretation of section 83
38
Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR.
39
Morgan v Simpson (1974) 3 All ER 722
cannot make sense in that context because the said Section was enacted before 2010. That fact alone
would mean that the regulation of what the nature and quality of election was, should be left to statute
without any reference to the Constitution. However, the Society urged that in constitutionalizing
what constitutes a free and fair election, the 2010 Constitution created minimum and non-negotiable
thresholds which the process and substance of an election must adhere to. In this regard, counsel
cited the case of Speaker of the Senate & another v Attorney-General & 4 others40, where the court was
emphatic that procedures prescribed in the Constitution must be adhered to. Hence, it was urged in
the alternative that if Section 83 is to be applied to post 2010 circumstances, it cannot be read to
oust a constitutional imperative or to regulate any aspect of the Constitution. Consequently, it was the
Society‘s submission that a narrow reading of section 83 which connes the provision to determination
of validity premised on an irregularity or technicality is good law.
124. Counsel further submitted that while article 140(3) of the Constitution requires this court to determine
whether a presidential election is valid, Section 83 of the Elections Act instead relates to voiding an
election. Counsel contended that invalid connotes the existence of something that can be revived, while
void has the essence of nothingness. It was therefore the submission of the Law Society of Kenya that
Section 83 is not applicable to the resolution of a presidential election dispute in that context. That
the test of invalidating an election is provided for under article 81 of the Constitution and not Section
83 of the Elections Act, which ignores fundamental constitutional principles.
G. Issues for Determination

125. The main issues for determination as crystallized from the petition, the responses thereto and the
written as well as oral submissions by counsel, are as follows:
i. Whether the 2017 Presidential Election was conducted in accordance with the principles laid
down in the Constitution and the law relating to elections.
ii. Whether there were irregularities and illegalities committed in the conduct of the 2017
Presidential Election.
iii. If there were irregularities and illegalities, what was their impact, if any, on the integrity of the
election"
iv What consequential orders, declarations and reliefs should this court grant, if any"
126. Before addressing the specic issues highlighted above, we shall rst discuss some of the identiable
legal principles emanating in this case, with the aim of setting the foundation for the ultimate
determination of this matter.
H. Interrogating The Emerging Legal Principles
i. Burden of Proof
127. Counsel for the petitioners, and the 1st and 2nd respondents did not make substantive submissions
on the burden of proof. It was, however, contended on behalf of the 3rd respondent, that in election
matters there is a presumption that the results declared by the electoral body are correct until the
contrary is proved. In support of that proposition, reference was made to the decision of this court in
40
Speaker of the Senate & another v Attorney-General & 4 others, Petition 2 of 2013; [2013] eKLR.
George Mike Wanjohi v Steven Kariuki & 2 others41 and that of the Supreme Court of Ghana in Nana
Addo Dankwa Akufo Addo & 2 others v John Dramani Mahama & 2 others.42
128. Senior counsel Mr Ahmednassir emphasized that the party, in this case, the petitioners, seeking the
nullication of the presidential election, bears the burden of proving that not only was there non-
compliance with the election law but also that the non-compliance aected the results of the election.
In buttressing this line of argument, senior counsel cited section 83 of the Elections Act, the decision
of this court in the 2013 Raila Odinga case, the decision of the Supreme Court of Uganda in Amama
Mbabazi v Yoweri Kaguta Museveni & 2 Others43, (Amama Mbabazi case) majority decision of the
Supreme Court of Canada in Opitz v Wrzesnewskyj44 and the Supreme Court of Nigeria in Abubakar
v Yar‘adua45.
129. The common law concept of burden of proof (onus probandi) is a question of law which can be
described as the duty which lies on one or the other of the parties either to establish a case or to establish
the facts upon a particular issue.46 Black‘s Law Dictionary47 denes the concept as [a] party‘s duty to
prove a disputed assertion or charge….[and] includes both the burden of persuasion and the burden
of production. With that denition, the next issue is: who has the burden of proof"
130. The law places the common law principle of onus probandi on the person who asserts a fact to prove
it. Section 107 of the Evidence Act, cap 80 of the Laws of Kenya, legislates this principle in the words:
Whoever desires any court to give Judgment as to any legal right or liability dependent on the existence
of facts which he asserts must prove that those facts exist. In election disputes, as was stated by the
Canadian Supreme Court in the case of Opitz v Wrzesnewskyj48, an applicant who seeks to annul an
election bears the legal burden of proof throughout. This court reiterated that position in the 2013
Raila Odinga case, thus:
(195) There is, apparently, a common thread in…comparative jurisprudence on burden of proof in
election cases…that an electoral cause is established much in the same way as a civil cause: the
legal burden rests on the petitioner….
(196) This emerges from a long-standing common law approach in respect of alleged irregularity in
the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed
to have been done rightly and regularly. So, the petitioner must set out by raising rm and
credible evidence of the public authority‘s departures from the prescriptions of the law.
131. Thus a petitioner who seeks the nullication of an election on account of non- conformity with the
law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds49
41
George Mike Wanjohi v Steven Kariuki & 2 others, Petition 2A of 2014; [2014] eKLR
42
Nana Addo Dankwa Akufo Addo & 2 others v John Dramani Mahama & 2 others, Writ No J 1/6/2013
43
Amama Mbabazi v Yoweri Kaguta Museveni & 2 others, Petition No 01/2016; [2016] UGSE 3.
44
Opitz v Wrzesnewskyj 2012 SCC 55; [2012] 3 SCR 76
45
Abubakar v Yar‘adua [2009] ALL FWLR (PT. 457) 1 SC.
46
Auburn J, 'Burden of Proof' in Malik H (ed) 'Phipson on Evidence, 17th (ed) Sweet and Maxwell, London, 2010 pp 149-151.
47
Black‘s Law Dictionary 8th ed (Bryan A Garner) (St Paul, MN: West Publishing Co, 2004), p 209.
48
Opitz v Wrzesnewskyj (2012) SC 55.
49
Hassan Abdalla Albeity v Abu Mohamed Abu Chiaba & another, petition 9 of 2013; [2013] eKLR.
to the satisfaction of the court.50 That is xed at the onset of the trial and unless circumstances change,
it remains unchanged.51 In this case therefore, it is common ground that it is the petitioners who bear
the burden of proving to the required standard that, on account of non-conformity with the law or on
the basis of commission of irregularities which aected the result of this election, the 3rd respondent‘s
election as President of Kenya should be nullied.
132. Though the legal and evidential burden of establishing the facts and contentions which will support a
party‘s case is static and remains constant throughout a trial52 with the plainti, however, "depending
on the eectiveness with which he or she discharges this, the evidential burden keeps shifting"53 and
"its position at any time is determined by answering the question as to who would lose if no further
evidence were introduced."54
133. It follows therefore that once the court is satised that the petitioner has adduced sucient evidence
to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the
respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and
demonstrating that there was compliance with the law or, if the ground is one of irregularities, that
they did not aect the results of the election. In other words, while the petitioner bears an evidentiary
burden to adduce factual‘ evidence to prove his/her allegations of breach, then the burden shifts and
it behoves the respondent to adduce evidence to prove compliance with the law. We shall revert to the
issue of the shifting of the burden of proof later in this judgment.
ii. Standard of Proof

134. The standard of proof is the one which raised controversy in this petition. On the applicable standard
of proof, the petitioners submitted that this court erred in the 2013 Raila Odinga case in holding
that save where criminal allegations are made in a petition, the standard of proof in election cases is
the intermediate one: above a balance of probabilities but below the one for criminal cases of beyond
reasonable doubt.
135. Appreciating that the court had reviewed several positions held by various jurisdictions in setting
the standard of proof in the 2013 Raila Odinga case, the petitioners submitted that the emerging
jurisprudence set out by the House of Lords in England is that in law, there exists only two standards
of proof, the criminal standard of beyond reasonable doubt and the civil standard of balance of
probabilities. They cited the case of Re B (Children)55 in support of that proposition.
136. It was further urged that besides Canada, the position held by the House of Lords has recently
been emulated by the Constitutional Court of Seychelles in Wavel John Charles Ramkalawan v The
Electoral Commission.56
50
Col Dr Kizza Besigye v Museveni Yoweri Kaguta & Electoral Commission, Election Petition No 1 of 2001.
51
Auburn J, 'Burden of Proof' in Malik H (ed) 'Phipson on Evidence, 17th (ed) Sweet and Maxwell, London, 2010 pp 149-151.
52
Halsbury's Laws of England, 4th Edition, Volume 17, para 13.
53
Raila Odinga & others v Ahmed Issaack Hassan & others, Petition 5 of 2013, para 195.
54
Charles Frederic, Joyce Chamberlayne, Howard C: 'The Modern Law of Evidence' (1911-1916 V II Para 937 (Heinoline))
55
Re B (Children) [2008] UKHL 35.
56
Wavel John Charles Ramkalawan v The Electoral Commission (2016) SCC 11
137. Citing the decision of the Canadian Supreme Court in the case of FH v Ian Hugh McDougall57, the
petitioners contended that the elevation of the civil standard of proof in respect of matters which
are not criminal in nature on the basis that they are deemed as serious matters‘ is improper. In the
circumstances, they urged the court to nd that the applicable standard of proof in the presidential
election petitions is on a balance of probabilities.
138. In contrast, the 1st and 2nd respondents argued that the 2013 Raila Odinga case is good law. It was
submitted that the burden of proof lies with the petitioners while the standard of proof is higher than
that in civil cases where election malpractice is imputed. In that regard, the respondents relied on the
Zambian case of Akashambatwa Lewanika & others v Fredrick Chiluba58, the decision of the Supreme
Court of Canada in Opitz v Wrzesnewskyj59 and the Nigerian Supreme Court‘s decision in Buhari v
Obasanjo60.
139. For the 3rd respondent, relying on this court‘s decision in the 2013 Raila Odinga case and Amama
Mbabazi case, it was submitted that save where allegation of commission of election oences are made
in respect of which the standard of proof is beyond reasonable doubt, the standard of proof in all other
allegations is above the balance of probabilities but not beyond reasonable doubt. Counsel for the 3rd
respondent dismissed the petitioners‘ call for a review of this court‘s decision in the 2013 Raila Odinga
case, arguing that the law as set out in that case, which this court and other have applied in several
subsequent cases, is still good law.
140. Although this court has jurisdiction to depart from its earlier decisions, counsel cited the decision of
this court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others61 and argued that to ensure
predictability, certainty, uniformity and stability in the application of the law and on the doctrine of
stare decisis, this court should be slow in reversing its decisions.
141. Counsel further submitted that under article 163(7) of the Constitution, it is the duty of the Supreme
Court to create law, order and solidity where there is conict in decisions over similar matters in the
lower courts. To do otherwise, the court would give rise to anarchy. Referring to the article by Daniel
A Farber & Suzanna Sherry62, he maintained that once the court renders itself in interpretation of the
Constitution it can‘t depart from such an interpretation.
142. On his part, the Attorney General submitted that presidential elections, being sui generis in character,
the standard of proof varies between the balance of probability to beyond reasonable doubt depending
on the allegation of irregularity or non – compliance with the electoral laws in issue. He cited the case
of Simmons v Khan63 in support of that proposition.
143. Besides the burden of proof, the law also imposes a degree of proof required to establish a fact. The
extent of the proof required in each case is what, in legal parlance, is referred to as the standard of proof.
57
FH v Ian Hugh McDougall (2008) 3 SCR 41.
58
Akashambatwa Lewanika & others v Fredrick Chiluba (1999) 1 LRC 138.
59
Opitz v Wrzesnewskyj 2012 SCC 55; (2012) 3 SCr 76.
60
Buhari v Obasanjo (2005) CLR 7K (SC)
61
Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Petition 4 of 2012; [2013] eKLR.
62
Daniel A Farber & Suzanna Sherry, 'Judgment Calls: Principle and Politics on Constitutional Law, (2009) 10 (2) Engage 135.
63
Simmons v Khan EWHC B4 (QB) 2008.
Black‘s Law Dictionary denes it as [t]he degree or level of proof demanded in a specic case64 in order
for a party to succeed.65
144. Various jurisdictions across the globe have adopted dierent approaches on the question of the
requisite standard of proof in relation to election petitions. From many decisions, three main categories
of the standard of proof emerge: the application of the criminal standard of proof of beyond reasonable
doubt; the application of the civil case standard of balance of probabilities‘; and the application of an
intermediate standard of proof.66
145. The application of the criminal standard of proof of beyond reasonable doubt‘ arises when the
commission of criminal or quasi criminal acts are made in a petition. This is the standard the Supreme
Court of India employed in the case of Shiv Kirpal Singh v Shri V V Giri67 where it stated:
“ Although there are inherent dierences between the trial of an election petition and that of
a criminal charge in the matter of investigation, the vital point of identity for the two trials
is that the court must be able to come to the conclusion beyond any reasonable doubt as to
the commission of the corrupt practice."
146. Kenya adopts this standard of proof. In the 2013 Raila Odinga case, this court stated that where
[there] are criminal charges linked to an election, … the party bearing the legal burden of proof must
discharge it beyond any reasonable doubt. Following this decision in Khatib Abdalla Mwashetani v
Gideon Mwangangi Wambua & 3 others68, the Court of Appeal stated that:
"Purely from the consequences that ow from the nding that a person is guilty of improper
inuence, we must conclude that improper inuence is serious conduct that has attributes
akin to those of an election oence. It is now settled beyond peradventure that the standard
of proof where an election oence or such kind of conduct is alleged, is proof beyond
balance of probabilities.
147. In England, however, no such distinction is made. Whether or not allegations of a criminal or quasi-
criminal nature are made in a petition, the ordinary civil litigation standard of proof on a balance of
probabilities‘ applies. This came out clearly in the decision of the Judicial Committee of the Privy
Council in Jugnauth v Ringadoo and others69 where there was an allegation of bribery. Arming the
decision of the Supreme Court of Mauritius, the Privy Council stated that:
[17] …there is no question of the court applying any kind of intermediate standard…
[19] It follows that the issue for the election court is whether the petitioner had established, on the
balance of probabilities, that the election was aected by bribery in the manner specied in
the petition."
64
Black‘s Law Dictionary (9th Edition, 2009) 1535.
65
Moses Wanjala Lukoye v Bernard Alfred Wekesa Sumbu & 3 others, Petition 2 of 2013; [2013] eKLR.
66
John Hatchard, 'Election Pettitions and the Stanard of Proof,' (2015) Vol 27 Denning Law Journal 291.
67
Shiv Kirpal Singh v Shri VV Giri 1971 SCR (2) 197
68
Khatib Abdalla Mwashetani v Gideon Mwangangi Wambua & 3 others, Civil Appeal 39 of 2013; [2014] eKLR.
69
Jugnauth v Ringadoo and others [2008] UKPC 50
148. In many other jurisdictions including ours, where no allegations of a criminal or quasi- criminal nature
are made in an election petition, an intermediate standard of proof‘, one beyond the ordinary civil
litigation standard of proof on a balance of probabilities‘, but below the criminal standard of beyond
reasonable doubt‘, is applied. In such cases, this court stated in the 2013 Raila Odinga case that [t]he
threshold of proof should, in principle, be above the balance of probability, though not as high as
beyond-reasonable-doubt….
149. This is the standard of proof that has been applied in literally all election petitions in this country. For
instance, in the case of M'nkiria Petkay Shen Miriti v Ragwa Samuel Mbae & 2 others70 the Court of
Appeal observed that [f]rom the practice and history of this country, the standard of proof required
in Election Petitions is higher than a balance of probabilities but not beyond reasonable doubt save
where oences of a criminal nature are in question.
150. The rationale for this higher standard of proof is based on the notion that an election petition is not
an ordinary suit concerning the two or more parties to it but involves the entire electorate in a ward,
constituency, county or, in the case of a presidential petition, the entire nation. As the Tanzanian High
Court stated in the old case of Madundo v Mweshemi & A-G Mwanza71:
"An election petition is a more serious matter and has wider implications than an ordinary
civil suit. What is involved is not merely the right of the petitioner to a fair election but the
right of the voters to non-interference with their already cast votes ie their decision without
satisfactory reasons.
151. In Kenya, Githua, J succinctly stated the rationale for this higher standard of proof in the case of Sarah
Mwangudza Kai v Mustafa Idd & 2 others72−
[29] ...it is important for this court to address its mind to the burden and standard of proof required
in election petitions. This is because election petitions are not like ordinary civil suits. They are
unique in many ways. Besides the fact that they are governed by a special code of electoral laws,
they concern disputes which revolve around the conduct of elections in which voters exercise
their political rights enshrined under article 38 of the Constitution. This means that electoral
disputes involve not only the parties to the petition but also the electorate in the electoral area
concerned.
It is therefore obvious that they are matters of great public importance and the public interest
in their resolution cannot be overemphasized. And because of this peculiar nature of election
petitions, the law requires that they be proved on a higher standard of proof than the one
required to prove ordinary civil cases.
152. We maintain that, in electoral disputes, the standard of proof remains higher than the balance
of probabilities but lower than beyond reasonable doubt and where allegations of criminal or
quasi criminal nature are made, it is proof beyond reasonable doubt. Consequently, we dismiss
the petitioners‘ submissions that the court should reconsider the now established legal principle, as
discussed above, and nd that the standard of proof in election petitions is on a balance of probabilities.
153. We recognize that some have criticized this higher standard of proof as unreasonable, however, as we
have stated, electoral disputes are not ordinary civil proceedings hence reference to them as sui generis.
70
M'nkiria Petkay Shen Miriti v Ragwa Samuel Mbae & 2 others, Civil Appeal 47 of 2013; [2014] eKLR
71
Madundo v Mweshemi & A-G Mwanza, HCMC No 10 of 1970.
72
Sarah Mwangudza Kai v Mustafa Idd & 2 others, Election Petition 8 of 2013; [2013] eKLR
It must be ascertainable, based on the evidence on record, that the allegations made are more probable
to have occurred than not.
iii. Valid Versus Rejected Votes in a Presidential Election in Kenya

154. As in the 2013 Raila Odinga case, an issue of rejected votes has also arisen in this petition. Besides
urging this court to nd that the high number of rejected votes in this matter is unrealistic, the
petitioners also urged this court to depart from its decision in the 2013 Raila Odinga case and take
rejected votes into account in ascertaining if a candidate had met the constitutional threshold.
155. On their part, the 1st and 2nd respondents submitted that rejected votes were properly excluded from
valid votes and in accordance to the law and in line with the court‘s sound nding in the 2013 Raila
Odinga case. For the 3rd respondent, it was submitted that the court in the 2013 Raila Odinga case had
made a well-reasoned decision on whether spoilt, disputed and rejected votes should count as part of
the votes cast in the computation of the constitutional requisite numerical threshold. They noted that
while the Supreme Court is not bound by its own decisions, and no reasonable ground having been
advanced for this court to reverse its decision in the 2013 Raila Odinga case, to ensure predictability,
certainty, uniformity and stability in the application of the law, the petitioners‘ plea in this regard
should be dismissed. It was further urged that the institutionalization of the play of the law gives scope
for regularity in spheres of social and economic relations.
156. The Attorney-General as amicus, submitted that although in terms of article 138 (4) of the
Constitution, the phenomena‘ of rejected votes is still a continuing concern in developing jurisprudence
in Kenya, he referred to comparative jurisprudence and urged that the court‘s decision in the 2013
Raila Odinga case on the matter remains good law and should not be departed from.
157. In presidential elections in Kenya, a candidate is elected president if he or she attains the threshold set
out in article 138(4) of the Constitution. The article provides that [a] candidate shall be declared elected
as President if the candidate receives more than half of all the votes cast in the election and at least 25%
of the votes cast in each of more than half of the counties.
158. In the 2013 Raila Odinga case, in considering whether the President elect had attained the threshold
of 50% + 1, the Supreme Court was faced with the question of what the phrase votes cast means. In
answering this question, the court, in paragraph 285 of its judgment, interpreted the phrase votes cast,
in article 138(4) of the Constitution as referring to only valid votes cast and not including ballot papers
or votes inserted into presidential ballot boxes but which were later rejected for non-compliance with
the law.
159. Varied opinions have since been expressed on the propriety of that decision. While some agree with
that decision, others are of the view that the phrase votes cast should be understood to refer to all
ballot papers inserted into the presidential ballot box. For instance, Francis Ang‘ila Aywa73 criticized
this court‘s reliance on the Seychellois Court of Appeal decision in Popular Democratic Movement v
Electoral Commission74 and particularly for equating spoilt‘ with rejected‘ votes. He contended that
[t]he two are dierent and spoilt votes‘ are never included in the tabulation of any election results.
While conceding that it is a truism in the study and scientic analysis of elections that votes cast
eventually get separated during the counting process into valid and rejected votes; he nevertheless takes
the view that votes cast include selfsame rejected votes. He posits that [i]n determining whether rejected
73
In the Chapter "A Critigue of the Raila Odinga v IEBC Decision in light of the Legal Standards for Presidential Elections in Kenya"
in Collins Odote & Dr Linda Musumba (eds) "Balancing the Scales of Electoral Justice; Resolving Disputes From the 2013 Elections in
Kenya and the Emerging Jurisprudence" IDLO and JTI 2016.
74
Popular Democratic Movement v Electoral Commission (2011) SLR 385.
votes should be included in the computation, regard should only have been made on the law. And in
this regard, in his view, article 138(4) of the Constitution leaves little to interpretation, especially when
looked at against the context that it was drafted to replace the repealed Constitution‘s Section 5(3)(f).
He does not address what informed the change.
160. Although he does not delve into the overall tallying for purposes of determining the threshold of
50% + 1, PLO Lumumba, in his article: "From Jurisprudence to Poliprudence: The Kenyan Presidential
Election Petition 2013"75, shares Aywa‘s position that a ballot paper that is inserted into a ballot box
amounts to a vote. However, only a properly marked ballot paper, or vote, counts in favour of the
intended candidate and this is the valid vote. The non-compliant ballot paper, or vote, on the other
hand will not count in the tally of any candidate""it is not only rejected, but is invalid and confers no
electoral advantage upon any candidate. In that sense, the rejected vote is void.
161. With respect, this court‘s decision in the 2013 Raila Odinga case was not based on the distinction
between spoilt votes and/or rejected votes as Mr Aywa argues. This court‘s decision in that case was
based on the reasoning that if rejected votes are not counted and/or assigned to any candidate, it would
be illogical to take them into account for purposes of determining the threshold of 50% +1 in article
138(4) of the Constitution. In its analysis at paragraph 281 of its judgment in the 2013 Raila Odinga
case, this court observed that even though both the Elections Act and its Regulations have used the
terms vote and ballot paper interchangeably, in Kenya, no law or regulation brings out any distinction
between them. The court thus noted that a ballot paper marked and inserted into the ballot box will
be either a valid vote or a rejected vote.
162. Viewed from the prism of these observations, it is imperative that the meaning of the phrase votes
cast in article 138(4) is clearly understood. In our view, no controversy arises as to the meaning of the
word cast. In elections, the term refers to the ballot papers inserted into ballot boxes. The problem
which arises is the correct meaning that should be ascribed to the term votes. Some, like Aywa76 and
Lumumba77, take the view that all marked ballot papers and inserted into the presidential ballot box are
votes, whether or not some are determined as valid and others as rejected votes at the time of counting.
Others, for instance, this court in the 2013 Raila Odinga case and the Seychellois Court of Appeal
decision in the Popular Democratic Movement v Electoral Commission78, hold the view that only validly
marked ballot papers amount to votes. In the circumstances, to determine the issue before us of what
is meant by the votes cast to be taken into account in the computation to determine the threshold of
50% +1 under Article 138(4), resort has to be had to the meaning of the words votes, cast and even
ballot papers.
163. Section 2 of our Elections Act denes the phrase ballot paper to mean a paper used to record the choice
made by a voter and shall include an electronic version of a ballot paper or its equivalent for purposes
of electronic voting. In their article From Intent to Outcome: Balloting and Tabulation Around the
75
The Law Society of Kenya Journal Vol II 2015 No 1 Law Africa.
76
Supra.
77
Supra.
78
Supra.
World, Birkenstock Joseph M & Sanderson Matthew T, dene the term ballot in more or less the same
way:
"We use ballot‘ in the broadest sense of the word… [to mean] any instrument used in the
act of voting, including paper ballots, optical scan sheets, punch cards, direct recording
electronic voting machines.
164. Herrnson Paul S (et al) denes the ballot paper as the means through which voters register their
intentions….79 Echoing the same words, Isaacs J, sitting as a Court of Disputed Returns, in Kean v
Kerby80 observed that [t]he essential point to bear in mind in this connection is that the ballot itself is
only a means to an end, and not the end itself.
165. Neither the Kenyan Constitution nor the Elections Act dene the term vote. The Elections Act, however,
denes the term voter to mean a person whose name is included in a current register of voters. Black‘s
Law Dictionary denes a vote‘ as the expression of one‘s preference or option in a meeting or election
by ballot, show of hands or other type of communication. The Dictionary of Modern Legal Usage81
denes the term as an [o]pinion expressed, resolution or decision carried, by voting.
166. From these denitions, particularly the one in the Black‘s Law Dictionary referring to a vote as the
expression of one‘s preference or option, the distinction between a ballot paper and a vote is clearly
discernible. A ballot paper is the instrument in which a voter records his choice, while a vote is the
actual choice made by a voter. A ballot paper does not become a vote by merely being inserted into the
ballot box, as it may later turn out to be rejected. Such an interpretation can also be deduced from the
wording of regulations 69(2) and 70 of the Elections (General) Regulations, 2012 which provides:
"69(2) A voter shall, in a multiple election, be issued with the ballot papers for all elections therein at
the same time and shall after receiving the ballot papers""
(a) Cast his or her votes in accordance with regulation 70 without undue delay."
On the other hand, regulation 70 provides:
"(1) A voter shall, upon receiving a ballot paper under regulation 69(2)-
a. Go immediately into one of the compartments of the polling station and secretly mark
his or her ballot paper by putting a cross, a tick, thumbprint or any other mark in the
box and column provided for that purpose against the name and the symbol of the
candidate for whom that voter wishes to vote; and
b. Fold it up so as to conceal his or her vote, and shall then put the ballot paper into the
ballot box in the presence of the presiding ocer and in full view of the candidates or
agents.
(2) The voter shall after following the procedure specied in sub regulation
(1) put each ballot paper into the ballot box provided for the election concerned.
(3) …
79
'The Impact of the Ballot Type on Voter Errors' in American Journal of Political Science, Vol 56 No 3 (July, 2012) pp 716-730.
80
Kean v Kerby, (1920) 27 CLR 449
81
2nd Edition, by Garner Bryan A.
167. A voter therefore is said to have cast his or her vote when the procedure under regulation 70 is followed.
This means that, upon receipt of the ballot paper, the voter proceeds to mark correctly, indicating his
exact choice of the candidate he wishes to vote for, and then inserts that marked ballot paper into the
respective ballot box for the election concerned.
168. Comparative jurisprudence from other jurisdictions, notably Australia; New Zealand; Canada; the
United Kingdom; Ireland; the Netherlands; India and South Africa, also makes a clear distinction
between a ballot paper and a vote. For instance, section 123 of the Australian Electoral Act of 1992,
formally distinguishes between a valid and an invalid vote. It states in subsection (4) thereof that [i]f a
ballot paper has eect to indicate a vote, it is a formal ballot paper. And in subsection (5) it adds that
[i]f a ballot paper does not have eect to indicate a vote, it is an informal ballot paper. That Act then
goes on to provide that an informal ballot paper does not count. A ballot paper is therefore counted
as a vote if it is lled in accordance with the set down procedure.
169. In the US, the criterion for making the distinction between a ballot paper and a vote is the clear and
discernible intention of the voter. This is manifest from the case of Brown v Carr82, cited with approval
by the US Supreme Court in Bush v Gore83, in which the Supreme Court of Western Virginia stated
that:
"It is equally well settled that, in determining whether a ballot shall be counted, and, if so,
for whom, depends on the intent of the voter, if his intention can be gleaned from the ballot
being considered, or, in some special instances, from facts and circumstances surrounding
the election. Courts decry any resort to technical rules in reaching a conclusion as to the
intent of the voter, and in respect thereto follow a liberal policy, to the end that voters be
not deprived of the exercise of their constitutional right of surage.
Adding that the investigation of the intent of the voter should be conned to the ballot itself, the court
added:
"Where the uncertainty as to the voter's intention is such as to cause a reasonable and
unprejudiced mind to doubt what the voter intended, the ballot should not be counted.
170. We can nd nothing in the Constitutional Review Commission‘s Report or in the Parliamentary
Hansard Report giving the basis for the change from valid votes cast in Section 5(3)(f) of the old
Constitution to votes cast in article 138(4) of the current Constitution. As we have stated, comparative
jurisprudence from New Zealand; Canada; the United Kingdom; Ireland; the Netherlands; India and
South Africa shows that rejected votes count for nothing. In the circumstances, we cannot see how a
rejected vote, a vote which is void, a vote that accords no advantage to any candidate, can be used in
the computation of determining the threshold of 50% + 1. In our view, a purposive interpretation of
article 138(4) of the Constitution, in terms of article 259 of the Constitution, leads to only one logical
conclusion: that the phrase votes cast in article 138(4) means valid votes. Consequently, we maintain
this Court‘s view in the 2013 Raila Odinga case and accordingly reject the petitioners‘ invitation to
reverse it.
iv The Meaning of Section 83 of the Elections Act
171. If we understand it well, and we think we do, section 83 of the Elections Act is the fulcrum of this
petition. Paragraph 17 0f the petition states that where an election is not conducted in accordance with
82
Brown v Carr 47 S.E. 2d 401, 130 W. Va. 455
83
Bush v Gore 531 US 98 (2000).
the Constitution and the written law, then that election must be invalidated notwithstanding the fact
that the result may not be aected. Even though that is the petitioners‘ position, they further aver that
IEBC conducted the presidential election with such serious irregularities which, standing alone would
also invalidate the election. Section 83 provides that:
"No election shall be declared to be void by reason of non-compliance with any written law
relating to that election if it appears that the election was conducted in accordance with the
principles laid down in the Constitution and in that written law or that the non-compliance
did not aect the result of the election."
172. Both Messrs. Mutakha Kangu and Paul Mwangi, counsel for the petitioners, urged this Court to depart
from its interpretation of section 83 of the Elections Act, in the 2013 Raila Odinga case. Counsel urged
that by following the Nigerian case of Buhari v Obasanjo84, the Court had devalued the eect of this
Section. In that case, the Supreme Court of Nigeria in interpreting the statutory version of Section
83 stated thus:
"The burden is on petitioners to prove that non-compliance has not only taken place but
also has substantially aected the result….There must be clear evidence of non-compliance,
then, that the non-compliance has substantially aected the election."
173. It was counsel‘s submission that the approach taken by the Supreme Court of Nigeria meant that
for a court to void an election, a petitioner would have to prove both limbs of the provision. Not
only would one have to prove that the impugned election was not conducted in accordance with the
principles of a written law relating to the election; the petitioner would also have to prove that such
non-compliance aected the result of the election. Such an approach, argued counsel, was not only
onerous to a petitioner, but made it almost impossible for an election to be successfully challenged in
a court of law.
174. It was submitted for the petitioners that the conjunctive and narrow interpretation of section 83 of the
Elections Act that this court gave the section in the 2013 Raila Odinga case undermines the supremacy
of the Constitution under article 2 of the Constitution and suggests that an act can remain valid despite
its transgression of the Constitution so long as it does not aect the result. It was submitted that the
correct interpretation of the section is the disjunctive one, the English Court of Appeal gave the English
equivalent in Morgan v Simpson85 which has been followed in many cases in this country including
Hassan Ali Joho v Hotham Nyange & another86, Moses Masika Wetangula v Musikari Nazi Kombo87
and Abdikhaim Osman Mohammed v Independent Electoral and Boundaries Commission88.
175. The petitioners further urged the court to adopt a purposive and progressive interpretation of section
83 to give eect to the spirit and letter of the law. It was submitted that the essence of section 83 was
that for elections to be valid, they must comply with the principles laid down in the Constitution‘,
written law and regulations. the constitutional principles are established in articles 38, 81 and 86 of
the Constitution. article 81(e) has established principles of free and fair elections, which principles have
been elevated to the status of fundamental rights under article 38 of the Constitution. article 86 focuses
84
Buhari v Obasanjo (2005) cLR 7(k) (SC).
85
Morgan v Simpson [1974] 3 All ER 722 at p 728.
86
Hassan Ali Joho v Hotham Nyange & another [2008] 3 KLR (EP) 500.
87
Moses Masika Wetangula v Musikari Nazi Kombo, Civil Appeal 43 of 2013; [2014] eKLR.
88
Abdikhaim Osman Mohammed v Independent Electoral and Boundaries Commission [2014] eKLR.
on system of election, and that most importantly, the Constitution imposes an obligation on the 1st
respondent to ensure that the voting system used is simple, accurate, veriable, secure, accountable and
transparent. This is meant to avoid the possibility of manipulation of the system.
176. The petitioners urged that an election that does not comply with the constitutional principles results is
a usurpation of the peoples‘ sovereignty by false representatives who do not represent the people‘s will
and who are not accountable to them. This goes contrary to the essence of article 4 of the Constitution,
which establishes Kenya as a sovereign Republic. They urged that Kenya being a Republic, it must
conduct itself and its elections as a true Republic anchored on constitutional democracy.
177. Supporting the petitioners view, counsel for the 1st interested party submitted that Section 83 should
not be used to white wash all manner of sins and irregularities which may occur during the electoral
process so as to render them immaterial.
178. For the 1st and 2nd respondents, it was submitted that non-compliance with the law alone without
evidence that the electoral process or the result had been materially and fundamentally aected was
not a basis for invalidating the electoral outcome. In the 1st and 2nd respondents‘ view, the correct
interpretation of section 83 is the one this court gave it in the 2013 Raila Odinga case.
179. Learned counsel for the 1st and 2nd respondents urged that to give the section the interpretation
advanced by the petitioners would derogate from the well settled and solid foundation of law and
jurisprudence as laid down by this court in the 2013 Raila Odinga case and render the Section
unconstitutional in as far as article 140 of the Constitution is concerned.
180. The 3rd respondent through his advocate, Senior Counsel, Mr Ahmednassir, contended that a party
seeking the nullication of the presidential election, bears the burden of proving that not only was
there non- compliance with the election law but also that the non- compliance aected the results of the
election. In support of this submission, counsel referred to the decision of this court in the 2013 Raila
Odinga case, the decision of the Supreme Court of Uganda in Amama Mbabazi v Yoweri Kaguta
Museveni & 2 others89 majority decision of the Supreme Court of Canada in Opitz v Wrzesnewskyj90
and the Supreme Court of Nigeria decision in Abubakar v Yar‘adua.91
181. Mr Kinyanjui learned Counsel for Prof Wainaina, the 2nd interested party, submitted that the 2017
Presidential Elections were free and fair. He argued that no sucient evidence had been tendered to
oust Section 83 of the Act. Counsel argued that non-compliance with the law during the election ought
not to invalidate the election if the court is satised that the election was substantially conducted in
accordance with the principles laid down in the Constitution.
182. The Law Society of Kenya (LSK) as amicus curiae emphasized the centrality of a voter in a democratic
government and urged that in interpreting the meaning and scope of section 83, this court should
consider its history and meaning, its interpretation in the 2013 Raila Odinga case as well as its
constitutionality.
183. Mr Mwenesi, learned Counsel for LSK urged that section 83 was not straightforward and posed
diculties in judicial interpretation as to what an administrative irregularity which can invalidate an
election constitutes. Further, that in interpreting that section in the 2013 Raila Odinga case, this court
laid out a broad test which is whether an alleged breach of law negates or distorts the expression of the
89
Amama Mbabazi v Yoweri Kaguta Museveni & 2 Others, PT No 01/2016.
90
Opitz v Wrzesnewskyj, 2012 SCC 55; [2012] 3 SCR 76.
91
Abubakar v Yar‘adua [2009] ALL FWLR (PT 457) 1 SC.
people‘s electoral intent. Counsel contended that from the court‘s interpretation, breach of the law
however grave is not by itself sucient to invalidate an election, where it is not shown that the breach
negated the voters‘ intent.
184. The LSK argued that the application of section 83 is limited in content and scope and only applies
where the validity of an election is restricted to irregularities. According to LSK, section 83 has no
application where there is violation of the Constitution or substantive provision of elections laws and
Regulations. It was urged, that Section 83 is only applicable where there are minor irregularities which
do not aect the overall outcome of the election. It is the submission of LSK that giving the provision
a dierent meaning leads to an absurdity.
185. The Attorney General submitted that the threshold required to disturb an election is one where
evidence discloses profound irregularities in the management of the electoral process, and where the
non-compliance aected the validity of the election. He concurred with the decision of the Supreme
Court in the 2013 Raila Odinga case where this court laid out the guiding criteria for disturbing an
election result.
186. The Attorney General pointed out comparative judicial decisions which arm the above position. He
cited the Supreme Court in Ghana in Nana Addo Dankwa Akufo Addo & 2 others v John Dramani
Mahma & 2 others92, where the position was that elections ought not to be held void by reasons
of transgressions of the law without any corrupt motive by the returning ocer or his subordinate,
and where the court is satised that notwithstanding the transgressions, an election was in substance
conducted under the existing election law. He also relied on the case of Woodward v Sarsons93 where
the court was of the opinion that an election is declared void by the common law applicable, where the
tribunal asked to void it is satised that there was no real election at all.
187. It is instructive to note that this court in the 2013 Raila Odinga case, did not render an authoritative
interpretation of section 83 of the Elections Act as read together with the relevant provisions of the
Constitution. At best, the court only made a tangential reference to this Section while addressing the
applicable twin questions of Burden and Standard of Proof in an election petition. We therefore think
that now is the time this Court should pronounce itself on the meaning of section 83 of the Elections
Act.
188. The forerunner to section 83 of our Elections Act is section 13 of the English Ballot Act of 1872, which
provided:
"No election shall be declared invalid by reason of a non-compliance with the rules contained
in Schedule 1 of this Act, or any mistake in the use of the forms in Schedule 2 of this Act, if
it appears to the tribunal having cognizance of the question that the election was conducted
in accordance with the principles laid down in the body of this Act, and that such non-
compliance or mistake did not aect the result of the election.
189. The post-1872 versions of this provision in British Election Statutes (1949) and (1983), use slightly
dierent phraseology. Instead of the words conducted in accordance with the principles laid down
in the body of this Act the modern statutes use the phrase so conducted as to be substantially in
accordance with the law as to elections. Judicial fora when called upon to interpret similar provisions
have tended to assign the same meaning to the two phrases.
92
Nana Addo Dankwa Akufo Addo & 2 others v John Dramani Mahma & 2 others, Writ No J 1/6/2013.
93
Woodward v Sarson [1875] LR 10 CP 733.
190. The celebrated case of Morgan v Simpson94, set the tempo on how courts in the Commonwealth
would interpret versions of the Representation of People Act. At issue in Morgan v Simpson, was
the interpretation and application of section 37 of the Representation of People Act (1949), which
provided thus:
"No local government election shall be declared invalid by reason of any act or omission
of the returning ocer or any other person in breach of his ocial duty in connection
with the elections or otherwise of the local election rules if it appears to the tribunal having
cognizance of the question that the election was so conducted as to be substantially in
accordance with the law as to elections and that the act or omission did not aect the result."
191. Before the current Kenyan Elections Act, this provision was imported into the National Assembly and
Presidential Elections Act, 1992 (now repealed) section 28 of which provided as follows:
"No election shall be declared to be void by reason of a noncompliance with any written
law relating to that election if it appears that the election was conducted in accordance with
the principles laid down in that written law, or that the noncompliance did not aect the
result of the election.
192. There are clearly two limbs to all the above quoted provisions: compliance with the law on elections,
and irregularities that may aect the result of the election. The issue in the interpretation of the
provisions is whether or not the two limbs are conjunctive or disjunctive.
193. It is unequivocally clear to us that, the use of the term and in the above cited English provisions renders
the two limbs conjunctive under the English law. Save for minor changes, the conjunctive norm in the
two limbs of this provision as captured in the two English provisions appears to have been borrowed
lock, stock and barrel by many Commonwealth countries, notably Nigeria, Ghana, Zambia, Tanzania
and Uganda to mention but a few.
However, under both the repealed National Assembly and Presidential Elections Act (section 28) and
the current Elections Act (section 83) the term used is or instead of and appearing in the English
Acts. The use of the word or clearly makes the two limbs disjunctive under our law. It is, therefore,
important that, while interpreting Section 83 of our Elections Act, this distinction is borne in mind. In
the circumstances, authorities from many Commonwealth countries, such as Nigeria, Ghana, Zambia,
Tanzania and Uganda whose provisions are not in sync or exact parri materia with ours may not be
useful.
194. That is not all. Our present provision is dierent from that in other countries in two other fundamental
aspects. First, the Kenyan Act does not have the word substantially, which is in many of the provisions
of other countries. Secondly, and fundamentally, in 2011, the Elections Act (No 24 of 2011) was enacted
and repealed the National Assembly and Presidential Elections Act. Section 83 of the new Elections Act,
obviously to harmonize it with our Constitution, added that to be valid, the conduct of our elections
in our country must comply with the principles laid down in the Constitution. This addition was
purposive given that the retired Constitution did not contain any constitutional principles relating to
elections. In interpreting the Section therefore, this court must rst pay due regard to the meaning and
import of the constitutional principles it envisages.
195. Among the well-established cannons of constitutional interpretation is the basic one that the
Constitution must be read as an integrated whole. Mr Justice White, in his dissent (Fuller CJ, McKenna
94
Morgan v Simpson [1974] 3 All ER 722.
& Day concurring) captured this principle in the case of State of South Dokota v State of North
Carolina95 where he stated:
"I take it to be an elementary rule of constitutional construction that no one provision of

the Constitution is to be segregated from all the others and considered alone but that all
the provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to eectuate the great purpose of the instrument.
196. Whereas the petitioners listed a host of articles of the Constitution which they alleged to have been
violated, we would like to zero in on article 10 which obliges all State organs, State Ocers, public
ocers and all persons to observe national values (inter alia, good governance, integrity, transparency
and accountability) whenever they apply and/or interpret the Constitution or other law or implement
public policy decisions; article 38 which sets out the political rights including the right to free, fair
and regular elections based on universal surage and the free expression of the will of the electors;
article 81 which sets out the principles to be observed in the conduct of free and fair elections; article
86 which sets out the manner of conducting referenda and elections; article 88 which establishes the
IEBC and enumerates its functions the paramount one being conducting and supervising referenda
and elections; and article 138 which sets out the procedure for conducting presidential elections. These
articles have to be read together to eectuate the purpose of electoral processes in our country.
197. Particularly, under article 38, besides the right to be registered as a voter and to vote in any referenda
or election as well as the right to contest in any public elective position, every citizen of this country is
entitled to the right to free, fair, and regular elections based on universal surage. Article 81(e) requires,
in mandatory terms, that our electoral system shall comply, inter alia with … the principles … of free
and fair elections, which are—
i. by secret ballot;
ii. free from violence, intimidation, improper inuence or corruption;
iii. conducted by an independent body;
iv transparent; and,
v administered in an impartial, neutral, ecient, accurate and accountable manner.
198. In addition to these principles, article 86 of the Constitution demands that [a]t every election, the
Independent Electoral and Boundaries Commission shall ensure that—
a. whatever voting method that is used, the system is simple, accurate, veriable, secure,
accountable and transparent;
b. the votes cast are counted, tabulated and the results announced promptly by the presiding
ocer at each polling station;
(c ) the results from the polling stations are openly and accurately collated and promptly
announced by the returning ocer, and
(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place
including the safe keeping of election materials. [Emphasis supplied]
95
State of South Dokota v State of North Carolina 192, U.S. 286 (24 S. Ct. 269, 48 L. Ed. 448).
199. Article 138 (3) (c) basically reiterates the provisions of article 86 and directs that after the counting
of votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and
verify the count and declare the result.
200. The principles cutting across all these articles include integrity; transparency; accuracy; accountability;
impartiality; simplicity; veriability; security; and eciency as well as those of a free and fair election
which are by secret ballot, free from violence, intimidation, improper inuence or corruption, and the
conduct of an election by an independent body in transparent, impartial, neutral, ecient, accurate
and accountable manner.
201. As we have stated, section 83 of the Elections Act was not in direct focus in the 2013 Raila Odinga case.
That notwithstanding, critics of that decision assert that had this court disjunctively considered the two
limbs of that section arguing that if it had, it would perhaps have reached a dierent conclusion. Those
who support the court‘s observation in that case argue that a holistic interpretation of the section
required the conjunctive application and, according to them, that is the interpretation this court gave
the section. What do we now make of these divergent contentions in the light of the pleadings in this
petition"
202. Among the well-established cannons of statutory interpretation, is the requirement that in addition
to reading the statutes as a whole96, where the words are clear and unambiguous, they must be given
their primary, plain, ordinary and natural meaning. The language used must be construed in its natural
and ordinary meaning. The sense must be that which the words used ordinarily bear.97 Ours being a
Constitutional System, the interpretation of our statutes must also be harmonized with the values and
principles in our Constitution. The wording of Section 83 of the Elections Act is clear and unambiguous.
The words of the section must therefore be given their natural and ordinary meaning.
203. Guided by these principles, and given the use of the word or in section 83 of the Elections Act as well as
some of our previous decisions98, we cannot see how we can conjunctively apply the two limbs of that
section and demand that to succeed, a petitioner must not only prove that the conduct of the election
violated the principles in our Constitution as well as other written law on elections but that he must
also prove that the irregularities or illegalities complained of aected the result of the election as counsel
for the respondents assert. In our view, such an approach would be tantamount to a misreading of the
provision.
204. Even in the English Court of Appeal decision in Morgan v Simpson99, which has extensively been cited
and applied in many cases in this country, both Lords Denning and Stephenson were of the clear view
that notwithstanding the use of the word and instead of the word or in their provision, the two limbs
of the section should be applied disjunctively. In his words, Lord Denning asserted:
1. If the election was conducted so badly that it was not substantially in accordance with the law
as to elections, the election is vitiated, irrespective of whether the result was aected.
2. If the election was so conducted that it was substantially in accordance with the law as to
elections, it is not vitiated by a breach of the rules or mistake at the polls-provided that the
breach or mistake did not aect the result of the election.
96
Royal Media Services v AG, Petition 346 of 2012; [2012] eKLR following Olum & another v AG of Uganda, (2002) 2 EA 508.
97
Halsbury Laws of England (3rd Ed) para 52; Caries on Statute Law (6th Edn), Sweet & Maxwell (1963) p 66.
98
See decision of Maraga, J (as he then was) Hassan Ali Joho v Hotham Nyange & another [2008] 3 KLR (EP) 500 at page 512.
99
Morgan v Simpson [1974] All ER 722.
205. On his part, Lord Stephenson went even a step further and held that even trivial breaches of the election
law should alone vitiate an election. This is how he put it:
"Any breach of the local election rules which aects the result of the election is by itself
enough to compel the tribunal to declare the election void. It is not also necessary that
the election should be conducted not substantially in accordance with the law as to local
elections…If substantial breaches of the law are, as I think enough to invalidate an election
though they do not aect its result, it follows that, contrary to the opinion of the Divisional
Court, trivial breaches which aect the result must also be enough. I cannot hold that both
substantial breach and an eect on the result must be found in conjunction before the court
can declare an election void.
206. Nearer home, we adopt the concurring opinion of Justice Professor Lilian Tibatemwa Ekirikubinza
issued in the case of Col DR Kizza Besigye v Attorney-General100 where, notwithstanding the
conjunctive nature of the Ugandan provision, she opined:
"Annulling of Presidential election results is a case by case analysis of the evidence adduced
before the court. Although validity is not equivalent to perfection, if there is evidence of
such substantial departure from constitutional imperatives that the process could be said
to have been devoid of merit and rightly be described as a spurious imitation of what
elections should be, the court should annul the outcome. The courts in exercise of judicial
independence and discretion are at liberty to annul the outcome of a sham election, for such
is not in fact an election."
207. Be that as it may, the issue as to how section 83 of the Elections Act ought to be interpreted by a court
of law in determining the validity or otherwise of an election, was later authoritatively settled by this
court in Gatirau Peter Munya v Dickson Mwenda Githinji and 2 others (2014) eKLR.
208. We are surprised that none of the counsel who canvassed this issue, made any reference to this case.
This court, was never in any doubt as to the disjunctive character of Section 83. The 7-judge bench
was categorical, when stating thus:
It is clear to us that an election should be conducted substantially in accordance with

the principles of the Constitution, as set out in article 81(e). Voting is to be conducted in
accordance with the principles set out in article 86. The Elections Act, and the regulations
thereunder, constitute the substantive and procedural law for the conduct of elections…
If it should be shown that an election was conducted substantially in accordance with
the principles of the Constitution and the Elections Act, then such election is not to
be invalidated only on ground of irregularities. Where however, it is shown that the
irregularities were of such magnitude that they aected the election result, then such an
election stands to be invalidated. Otherwise, procedural or administrative irregularities and
other errors occasioned by human imperfection, are not enough, by and of themselves,
to vitiate an election…Where an election is conducted in such a manner as demonstrably
violates the principles of the Constitution and the law, such an election stands to be
invalidated.[Emphasis added.]
209. Therefore, while we agree with the two Lord Justices in the Morgan v Simpson case that the two limbs
should be applied disjunctively, we would, on our part, not take Lord Stephenson‘s route that even
trivial breaches of the law should void an election. That is not realistic. It is a global truism that no
100
Col DR Kizza Besigye v Attorney-General, Petition Number 13 of 2009.
conduct of any election can be perfect. We will also go a step further and add that even though the
word substantially is not in our section, we would infer it in the words if it appears in that section.
That expression in our view requires that, before vitiating it, the court should, looking at the conduct
of the whole election, be satised that it substantially breached the principles in the Constitution, the
Elections Act and other electoral law. To be voided under the rst limb, the election should be what
Lord Stephenson called "a sham or travesty of an election" or what Prof Ekirikubinza refers to as "a
spurious imitation of what elections should be".
210. Contrary to the submissions for the Law Society of Kenya, we entertain no doubt whatsoever that
section 83 of the Elections Act applies to the presidential election petitions as it does to all other election
disputes. As stated, guided by the principles in articles 10, 38, 81 and 86 as well as the authorities
referred to above, we therefore disagree with the respondents, the 2nd interested party as well as the
Attorney General that the two limbs in section 83 of the Elections Act have to be given a conjunctive
interpretation.
211. In our respectful view, the two limbs of Section 83 of the Elections Act should be applied disjunctively.
In the circumstances, a petitioner who is able to satisfactorily prove either of the two limbs of the
Section can void an election. In other words, a petitioner who is able to prove that the conduct of the
election in question substantially violated the principles laid down in our Constitution as well as other
written law on elections, will on that ground alone, void an election. He will also be able to void an
election if he is able to prove that although the election was conducted substantially in accordance with
the principles laid down in our Constitution as well as other written law on elections, it was fraught
with irregularities or illegalities that aected the result of the election.
212. Having analyzed the wording of section 83 of the Elections Act, bearing in mind its legislative history
in Kenya and genesis from the Ballot Act and also in light of the need to keep in tune with Kenya‘s
transformative Constitution, it is clear to us that the correct interpretation of the Section is one that
ensures that elections are a true reection of the will of the Kenyan people. Such an election must be
one that meets the constitutional standards. An election such as the one at hand, has to be one that is
both quantitatively and qualitatively in accordance with the Constitution. It is one where the winner of
the presidential contest obtains more than half of all the votes cast in the election; and at least twenty-
ve per cent of the votes cast in each of more than half of the counties as stipulated in article 138(4) of
the Constitution. In addition, the election which gives rise to this result must be held in accordance with
the principles of a free and fair elections, which are by secret ballot; free from intimidation; improper
inuence, or corruption; and administered by an independent body in an impartial, neutral, ecient,
accurate and accountable manner as stipulated in article 81. Besides the principles in the Constitution
which we have enumerated that govern elections, section 83 of the Elections Act requires that elections
be conducted in accordance with the principles laid down in that written law. The most important
written law on elections is of course the Elections Act itself. That is not all. Under article 86 of the
Constitution, IEBC is obliged to ensure, inter alia, that:
Whatever voting method is used, the system is simple, accurate, veriable, secure,
accountable and transparent; the votes cast are counted, tabulated and the results
announced promptly by the presiding ocer at each polling station; the results from
the polling stations are openly and accurately collated and promptly announced by
the returning ocer; and appropriate structures and mechanisms to eliminate electoral
malpractice are put in place, including the safekeeping of election materials.
I. Analysis of Issues for Determination
213. With the above imperative constitutional and legal principles in mind, we would now like to turn to the
facts of this case, starting with the rst limb of section 83 and in this we shall be analyzing the violations
of the principles in the Constitution and the electoral law that the petitioners are complaining of.
i. Whether the 2017 Presidential Election was conducted in accordance with the principles laid down
in the Constitution and the written law relating to elections
214. In paragraphs 12 and 13 of the petition, the petitioners allege that in the conduct of the presidential
election, IEBC became a law and institution unto itself‘ and so agrantly outed the Constitution and
the written election law on elections that in the end it completely subverted the will of the electorate.
In particular, the petitioners urge that the 1st respondent violated the constitutional principles set
out in articles 81 and 86 by failing to ensure that the conduct of the elections was simple, accurate,
transparent, veriable, secure and accountable.
215. In support of their case, the petitioners led several adavits setting out what, in their view, were
egregious irregularities and illegalities, which, taken together, establish an impregnable case on both
limbs of the section to wit: non-compliance with constitutional principles and the written law on
election, as well as commission of irregularities which aected the results of the elections. We shall
address other illegalities and irregularities later but for now we shall limit ourselves to the question of
transmission of results and transmission of unveried results.
216. The petitioners‘ major complaint in this matter relates to the transmission of the election results. Ole
Kina, Godfrey Osotsi and Olga Karani, who were NASA‘s agents at the National Tallying Centre at
Bomas of Kenya, deposed that hardly 10 minutes after polling closed at 5.00 pm on August 8, 2017,
the presidential results started streaming in and were beamed on TV screens at the Centre without any
indication of where they were coming from. On enquiry, IEBC kept fumbling around, alleging that
because of network challenges, images of Forms 34A were not coming in as fast as would be expected
and that some might not come in at all. Ole Kina deposed that by the end of 10th August, IEBC had
supplied them with only 23,000 Forms 34A and 50 Forms 34B. By the time the results were declared on
August 11, 2017, results from over 10,000 polling stations had not been received. In the circumstances,
he wondered how the nal results declared could be relied upon to validate the election.
217. The petitioners‘ further case is that the results that were streaming in from August 8, 2017 to 1August
1, 2017 showed a consistent dierence of 11% between the results of Uhuru Kenyatta and Raila
Odinga. According to the petitioners, such a pattern indicated that the results were not being streamed
in randomly from the dierent polling stations but that they were being held somewhere and adjusted
using an error adjustment formula to bring in a pre-determined outcome of results.
218. In a nutshell, the petitioners‘ claim in this regard is that, on the consideration of the evidence contained
in all the adavits sworn in support of the petition and the submissions made by their counsel, IEBC‘s
conduct of the presidential election was fundamentally awed and/or incompatible with the electoral
values and principles of the Constitution including transparency, accountability, accuracy, security,
veriability, and eciency. They further argue that contrary to sections 39, 44 and 44A of the Elections
Act, IEBC failed to transmit or to promptly and simultaneously electronically transmit presidential
election results from polling stations to the Constituency Tallying Centres (CTC) and National
Tallying Center (NTC). According to them, this failure was deliberate, systemic and systematic.
219. The petitioners add that IEBC‘s Secretary and CEO, Ezra Chiloba, is on record as admitting that as
at August 17, 2017 (over 9 days after close of polling) the IEBC was yet to provide all Forms 34A
and Forms 34B to the petitioners. And that bearing in mind the mischief sought to be cured by
the prompt electronic transmission of results and the constitutional obligation of secure, accurate,
veriable, accountable and ecient elections, the unreasonable delay in the electronic transmission of
the results, if at all, as required by section 39(1C) of the Elections Act, grossly aected the integrity,
credibility and validity of the results purportedly declared by the IEBC, so the petitioners contended.
220. In response, the 1st and 2nd respondents submitted that upon completion of counting of votes, the
presiding ocers would, using the KIEMS, take an image of Form 34A, manually enter into the
KIEMS the results of each candidate and then simultaneously transmit the image and the results
directly to the NTC and the CTC.
221. The 1st and 2nd respondents‘ case as contained in James Muhati‘s adavit is also that, the transmission
of results required 3G and 4G mobile network which was provided by three Mobile Network
Operators (MNOs), Safaricom, Airtel and Telkom Orange. That following a mapping exercise carried
out by the 1st respondent and analysis by the MNOs (he does not say when this was done), it was
ascertained that about 11,155 polling stations within the country were not eectively covered by either
3G or 4G network. In that regard, it was their case that the presiding ocers in such aected polling
stations would then be required to move to points with network coverage or in the alternative, to
Constituency Tallying Centres, in order to transmit the results.
222. The 1st and 2nd respondents further urged that even if the electronic transmission of results was not
eective as pleaded, the Forms 34A were still physically delivered to the CTC in accordance with the
law. They also maintained that the system was not compromised and the results were not in any way
manipulated.
223. In conclusion, the respondents urged that the aws in election transmission of results, if any, cannot
be the basis of voiding a presidential election with such a large margin of dierence of numbers
between the two leading contestants. Counsel for the respondents, the 2nd interested party as well as
the 1st amicus curiae, the Attorney-General, submitted that in an election petition, the paramount
consideration is to ensure that the will of the majority of the voters carry the day. In their view, aws
in election results transmission cannot be the basis of voiding a presidential election with such a large
margin in votes as the one in this case.
224. On our part, having considered the opposing positions, we are of the view that, the contentions by the
1st and 2nd respondents ignore two important factors. One, that elections are not only about numbers
as many, surprisingly even prominent lawyers, would like the country to believe. Even in numbers, we
used to be told in school that to arrive at a mathematical solution, there is always a computational path
one has to take, as proof that the process indeed gives rise to the stated solution. Elections are not events
but processes. As Likoti, JF opines [e]lections are not isolated events, but are part of a holistic process
of democratic transition and good governance….101 Incidentally, IEBC‘s own Election Manual (Source
Book)102 recognizes that an election is indeed a process.
225. There are many other authorities which speak to this proposition. In Kanhiyalal Omar v RK Trivedi
& others103 and Union of India v Association for Democratic Reforms & another104, the Supreme Court
101
Likoti, JF., "Electoral Managment Bodies as Institutions of Good Giovernance: Focus on Lesotho Independent Electoral Commission" Vol
13 (1) Review of South African Studies 123-142 (2009) at page 126 (Dahl, R) (1998) On Democracy. New Haven CT and London":
Yale University Press.)
102
Election Manual (Source Book), 1st Edition, 2017.
103
Supreme Court of India on September 24, 1985; 1986 AIR 111, 1985 SCR Supl. (3) 1.
of India, for example, stated that the word election‘ is used in a wide sense to include the entire process
of election which consists of several stages and it embraces many steps, some of which may have an
important bearing on the result of the process. These stages include voter registration; political party
and candidate registration; the allocation of state resources and access to media; campaign activities;
and the vote, count, tabulation and declaration of results.105 Lady Justice Georgina Wood, the former
Chief Justice of Ghana, made the same point and added other stages when she stated:
"The Electoral process is not conned to the casting of votes on an election day and the
subsequent declaration of election results thereafter. There are series of other processes,
such as the demarcation of the country into constituencies, registration of qualied voters,
registration of political parties, the organization of the whole polling system to manage and
conduct the elections ending up with the declaration of results and so on106
And according to the European Human Rights Committee, the process also includes the
right to challenge the election results in a court of law or other tribunal.107
226. Here in Kenya, the issue of elections as a process was discussed in the case of Karanja Kabage v Joseph
Kiuna Kariambegu Nganga & 2 others108 where the High Court observed that:
"an election is an elaborate process that begins with registration of voters, nomination of
candidates to the actual electoral oces, voting or counting and tallying of votes and nally
declaration of the winner by Gazettement. In determining the question of the validity of the
election of a candidate, the court is bound to examine the entire process up to the declaration
of results….The concept of free and fair elections is expressed not only on the voting day
but throughout the election process….Any non-compliance with the law regulating these
processes would aect the validity of the election of the Member of Parliament.
227. This case was cited with approval by the Supreme Court in In the matter of the Gender Representation
in the National Assembly and Senate.109 Therefore the process of getting a voter to freely cast his
vote, and more importantly to have that vote count on an equal basis with those of other voters is as
important as the result of the election itself.
228. It is also fact of common notoriety that there were serious protests following the declaration of the 2007
presidential election results. The violence arising from those protests not only claimed over 1000 lives
and led to the destruction of and looting of property worth hundreds of millions of shillings, but also
drove the entire country to the precipice of destruction. It is also common knowledge that following
that violence, the Government formed the Independent Review Commission (IREC), commonly
known as the Kriegler Commission, to inquire into the conduct of the 2007 elections and the cause of
104
Appeal (Civil) 7178 of 2001.
105
OSCE/ODIHR 2013; 'Guidelines for Reviewing a Legal Framework for Elections Second Edition at page 70
106
Lady Justice Georgina Wood, "International Standards in Electoral Dispute Resolution" in the Book "Guidelines for Understanding
Adjudicating and Resolving Disputes in Elections," Guarde, Edited by Chard Vickery (2011) at page 8.
107
See European Union, "Compendium of International Standards for Elections" (4th Edition), Brussels, 2016 Pg 22- 23.
108
Karanja Kabage v Joseph Kiuna Kariambegu Nganga & 2 Others, Election Petition 12 of 2013; [2013] eKLR.
109
In the matter of the Gender Representation in the National Assembly and Senate, Advisory Opinion 2 of 2012; [2012] eKLR.
that violence. One of the critical areas of that Commission‘s focus was the integrity of vote counting,
tallying and announcement of presidential election results. Let the Kriegler Report speak for itself:
The acceptability of an election depends very considerably on the extent to which the public
feel the ocially announced election results accurately reect the votes cast for candidates
and the parties. It depends, too, on factors such as the character of the electoral campaign
and the quality of the voter register, but reliable counting and tallying is a sine qua non if
an election is to be considered legitimate by its key assessors-the voters110….The system of
tallying, recording, transcribing, transmitting and announcing results was so conceptually
defective and executed (sic)…111 Counting and tallying during the 27-30 December 2007
(and even hereafter) and the announcement of individual results were so confused- and so
confusing- that many Kenyans lost whatever condence they might have had in the results
as announced. While integrity is necessary at all stages in the electoral process, nowhere is it
more important than in counting and tallying [Emphasis added.]
229. Among the signicant recommendations the Kriegler Commission made related to the use of
technology in the electoral process. It recommended that:
… without delay [the Electoral Commission of Kenya] ECK starts … [developing]

an integrated and secure tallying and data transmission system, which would allow
computerized data entry and tallying at constituencies, secure simultaneous transmission
(of individual polling station level data) to the national tallying centre, and the integration
of this results-handling system in a progressive election result announcement system.112
230. Pursuant to those recommendations, the process of integrating technology into the conduct of
elections was undertaken starting with the use of Biometric Voter Registration (BVR) equipment to
register voters on a pilot basis in the run up to the 2010 referendum. In the 2013 elections technology
was applied for registration of voters, voter identication and results transmission. However, that
did not work very well in the 2013 general election and it was one of the key issues that was raised
in the 2013 presidential petition before this court. Consequently, in 2016 the Joint Parliamentary
Select Committee on matters relating to the bipartisan Independent Electoral and Boundaries
Commission(IEBC) was formed, discussed the use of technology in elections and made far-reaching
recommendations which led, to amongst others, extensive amendments to the Elections Act to provide
for use of technology and also technology dedicated regulations, the Elections (Technology) Regulations
2017.
231. These changes, in our view, were meant to re-align several pieces of election-related legislation, with the
principles of the Constitution and the electoral jurisprudence that had been developed by the courts.
The cumulative eect of these changes was the establishment of what is now referred to as the Kenya
Integrated Election Management System (KIEMS). Henceforth, technology would be deployed to the
process of voter registration, voter identication and the transmission of results to the Constituency
and National Tallying Centres.
110
Report of the Independence Review Commission on the General Elections Held in Kenya on December 27, 2007, page 9 (Kriegler Report).
111
Kriegler Report, page 9.
112
Kriegler Report, page 138.
232. Towards this end, Parliament enacted section 44 of the Elections Act; subsection (1) of which provides
that:
"there is established an integrated electronic electoral system that enables biometric voter
registration, electronic voter identication and electronic transmission of results."
Subsection (3) thereof provides that:
"the Commission shall ensure that the technology in use under subsection (1) is simple,
accurate, veriable, secure, accountable and transparent.
233. Section 39(1C) of the Elections Act then squarely addresses the results transmission aspects of these
changes in the law. It provides that:
For purposes of a presidential election the Commission shall-
a. electronically transmit, in the prescribed form, the tabulated results of an

election for the President from a polling station to the Constituency tallying
centre and to the national tallying centre;
b. tally and verify the results received at the national tallying centre; and
c. publish the polling result forms on an online public portal maintained by the
Commission.
234. Regarding the voter register, this court in the 2013 Raila Odinga decision had observed that there was
no single voter register but an aggregation of several parts into one register.
235. To cure this anomaly, Parliament amended section 4 of the Elections Act to provide that:
"There shall be a register to be known as the Register of Voters which shall comprise of−
a. a poll register in respect of every polling station;
b. a ward register in respect of every ward;
c. a constituency register in respect of every constituency;
d. a county register in respect of every county; and
e. a register of voters residing in Kenya."
Section 10 (1) of the Elections Act provides that:
"A person whose name and biometric data are entered in a register of voters in a particular
polling station, and who produces an identication document shall be eligible to vote in
that polling station."
Parliament also, introduced a new section 6A to provide inter alia; that:
1. The Commission shall, not later than sixty days before the date of a general election, open the
Register for verication of biometric data by members of the public at their respective polling
stations for a period of thirty days.
2. The Commission shall, upon expiry of the period for verication specied under subsection
(1), revise the Register of Voters to take into account any changes in particulars arising out of
the verication process.
3. The Commission shall, upon expiry of the period for verication specied under subsection(1)
publish- …the Register of Voters online and in such manner as may be prescribed by
regulations.
236. All these legislative enactments have one objective; to ensure that in conformity with the Constitution,
the elections are free, fair, transparent and credible.
257. It is important to note that the terms simple, accurate, veriable, secure, accountable and transparent
engrafted into these provisions, are the selfsame constitutional principles in articles 10, 38, 81 and
86. We must in that context now proceed, to determine whether, the 1st respondent, conducted the
presidential election in accordance with the principles laid down in the Constitution and the law.
The Mystery of Forms 34A and the conundrum of electronic transmission

238. By far, the most critical and persistently claimed non-compliance with the law, was that the 1st
respondent announced results on the basis of Forms 34B before receiving all Forms 34A. It was
also alleged that the results announced in Forms 34B were dierent from those displayed on the
1st respondents‘ Public Web Portal. This was contrary to section 39 (1C) of the Elections Act. The
petitioners also argued that the non-compliance was in violation of Articles 81(e) and 86 of the
Constitution. The non-compliance also went contrary to the Court of Appeal‘s decision in Maina
Kiai. The petitioners also claimed that many results were transmitted from the polling stations
unaccompanied by the scanned image of Form 34A, contrary to section 39 (1C) of the Elections Act as
read together with sections 44, and 44 (A) of the Act.
239. In response, the 1st respondent submitted that the dierence in the results announced on the Forms
and the Public Web Portal did not oend any law or regulation in view of the fact that the results in
the forms were nal, while the results on the Public Web Portal were mere statistics. Mr Nyamodi,
counsel for the 1st respondent also submitted that in view of the Court of Appeal‘s decision in Maina
Kiai, the system of transmission had to be recongured to allow for manual transmission. Counsel
explained that the source document that the 1st respondent relied on to do so was no longer Form
34A but Form 34B.
240. Likewise, counsel submitted, a similar fate had befallen the Form 34C in terms of format and structure.
Towards this end, counsel informed the court that the original Form 34C which had contained a Form
34A tally was recongured by the rst respondent to exclude that tally so as to conform to the decision
of the appellate court in Maina Kiai.
241. As for the controversy surrounding the electronic transmission of results, counsel submitted that such
transmission, was a mere conveyance belt and nothing more. To this, Mr Ngatia, counsel for the 3rd
respondent would later add that, the electronic transmission with which the petitioner was obsessed
was like a matatu and no more. What was important, counsel urged, was what was conveyed (meaning,
the results) as opposed to the manner in which it was conveyed (meaning the electronic transmission).
242. The 1st respondent also submitted that the security feature of the Kenya Integrated Electoral
Management System (KIEMS) was programmed to capture and transmit only one image. In some
instances, Text Data was transmitted instead of the lled and scanned Forms 34A. At any rate, argued
the 1st respondent, the omission of un-transmitted forms, was cured by uploading the said forms,
onto the Public Portal. According to the IEBC, the transmission of the wrong images did not aect or
invalidate the result contained in the statutory Forms 34A. Later, it was argued, access to the scanned
forms was granted to the public through Website.
243. Still on transmission of results, the petitioners highlighted various discrepancies, for instance that
there was transmission of results from slightly more than 11,000 polling stations other than gazetted
polling stations contrary to Regulation 7. It was also alleged that the streaming of results commenced
a few minutes after 5.00 pm. being the ocial closing time for all polling stations. In addition, the
petitioners questioned the streaming of results in constant percentages of 54% and 44% in favour of
the 3rd respondent and the 1st petitioner, respectively.
244. The petitioners further claimed that there were numerous discrepancies between the results declared
in Forms 34A and those in Forms 34B from various polling stations across the Country, contrary
to section 39 of the Elections Act, as read with regulation 82 thus compromising the integrity of the
election.
245. In response, the 1st and 2nd respondents, countered the accuracy in some of the allegations by
providing contrary gures through a number of deponents. However, the said respondents also
admitted that indeed there were discrepancies in the results in Forms 34A and Forms 34B spread
across the Country but attributed them to human errors and fatigue of election ocials. They further
contended that the discrepancies in question did not aect the result of the election.
246. The 1st and 2nd respondents added in further response, that the 11, 155 polling stations from which
the impugned results were streamed were in areas which were not served by 3G and 4G network
coverage.
247. The petitioners‘ case, and the responses thereto by the respondents, have conjured in our minds, a
puzzle of labyrinthine proportions regarding Forms 34A. In the face of a very clear and unambiguous
section 39(1C) of the Elections Act, what went wrong with this critical document" The case for the
petitioners is that the 2nd respondent, in exercise of his responsibility as the returning ocer of the
presidential election, declared the results for the election of president before receiving all the Forms
34A from the 40,883 polling stations from across the country. Incomplete results, argued Mr Otiende
Amollo for the petitioners, could not be a basis for a valid declaration. The respondents‘ answer to that
assertion is that the results were declared on the basis of Forms 34B all of which had been received by
the time the declaration was made.
248. In an adavit sworn by Koitamet Ole Kina, in support of the petition, there is telling correspondence
which we had referred to earlier but which we reproduce in the present context. On the 10th of August
2017, the deponent, acting on behalf of the petitioners, wrote to the 2nd respondent in the following
words:
"Your brief on the above subject at Bomas on August 10, 2017 at around 9:00 pm refers.
You informed Kenyans and the world at large that IEBC had received over 40000, Forms 34
A and about 170 Forms 34B. We have requested IEBC for all these forms for purposes of
verication. Members of your secretariat have informed us that they can only avail 29000
Forms 34A as at 11pm of August 10, 2017. We kindly request the Commission expedite
(sic) release of the remaining Forms 34A &B to enable us complete the verication exercise."
249. Again on August 14, 2017, the deponent wrote:
"This is a follow up on our letter dated August 10, 2017. Until now, IEBC has only furnished
NASA with 29000 forms 34 A and 108 forms 34B. We urgently require the unsupplied
ten thousand (10000) forms 34A and one hundred and eighty seven (187) forms 34 B to
complete the list of documents the Commission was supposed to release to all the candidates
in the just concluded general elections. Attached please nd a list of the outstanding 187
constituencies for your immediate action.
250. On August 14, 2017, the Secretary and CEO of the 1st respondent wrote;
"Reference is made to your letter dated August 14, 2017 requesting to be supplied with the
remaining forms that were not supplied earlier. The Commission is in a position to provide
all the required form 34Bs immediately. We are however not able to supply form 34As at the
moment but the same shall be availed to you as soon as possible."
251. It is a fact that the correspondence quoted above did take place, and the contents of the said
correspondence were never controverted. On this basis, a number of questions arise:
a. Why was the 1st respondent not able to immediately supply the petitioners‘ agents with all the
Forms 34 B upon declaration of results if as it was submitted, the said results were based on the
same, and all of which were said to have been available"
b. Why was the 1st respondent not able to supply all the Forms 34 A (said to be around 11,000)
to the petitioners as at August 14, 2017; (4) days after the declaration of results"
c. Were all the scanned copies of Forms 34A electronically transmitted to the National Tallying
Centre simultaneously with those transmitted to the Constituency Tallying Centre in
accordance with section 39(1C) of the Elections Act" If so, why would it have been impossible
for the 1st respondent to avail those copies to the petitioners" If not, why were they not
transmitted in the manner required by the law"
252. We sought answers to these questions as we listened to the submissions of counsel on the emerging
conundrum. The submissions of Mr Nyamodi, on behalf of the 1st respondent, made disturbing if not
startling revelations. According to counsel, the 1st respondent used Forms 34B as opposed to Forms
34A to declare the nal results of the presidential election. He emphasized that at the time the nal
results of the presidential election were declared, all Forms 34B had been collated. It was counsel‘s
submission that, the declaration of sections 39 (2) and (3) of the Elections Act, 2011 by the Court of
Appeal as being inconsistent with the Constitution, curtailed the 1st respondent‘s ability to change,
amend or alter the results transmitted from the Constituency. According to him therefore, the decision
of the Court of Appeal in the Maina Kiai case extinguished the concept of provisional results.
253. Consequently, the numbers manually entered into the KIEMS kit at the close of polling, and
transmitted simultaneous to the CTC and the NTC, bore no status in law. They were mere statistics,
although, as Mr Muhati stated in his adavit, the presiding ocer had to show the agents present the
entries made for conrmation before transmission.
254. Mr Nyamodi further explained that the completion of the transmission of the image of Forms 34A
was dependent on the availability of 3G or 4G network coverage. In respect of areas lacking 3G or
4G network coverage, the respondents established alternative mechanisms to ensure completion in
transmission of the image of the Form 34A. The procedure adopted in the transmission and tallying
of results of the presidential election was in conformity with the decision of the Court of Appeal in
the Maina Kiai case.
255. On the basis of this process, Counsel submitted that the petitioners‘ allegation that the 1st respondent
deliberately pre-determined and set itself on a path of subverting the law by being a law unto itself,
was unfounded. In addition, Counsel submitted that the determination by the Court of Appeal on
the nality of presidential election results declared by the constituency returning ocer also changed
the structure of Form 34C. Regulation 87(3)(b) for avoidance of doubt provides that: upon receipt of
Form 34A from the constituency returning ocers under sub-regulation (1), the Chairperson of the
Commission shall tally and complete Form 34C. However, the 1st respondent had to allegedly modify
Form 34C to reect the entry of Forms 34B, which was the Form declared by the Court of Appeal to
be the source document to determine the winner of a Presidential election, instead of Forms 34A.
256. Mr Nyamodi concluded by rearming that the way the 1st respondent structured its transmission
system, was largely based on the Court of Appeal‘s decision in the Maina Kiai case which did not
interfere with or negate the will of the people resident in Form 34A.
257. What was Mr Nyamodi saying
"We were left to ask. Was counsel admitting that the 2nd respondent indeed as claimed by the
petitioners, had declared the presidential results without having received all Forms 34A" Was
he in the same vein also admitting that not all Forms 34A had been electronically transmitted
to the National Tallying Centre from the polling centres as required by law" Where did the
language of statistics as opposed to results emerge from" Was counsel disclosing the fact that
fundamental changes had been made to the KIEMS system at the sole discretion of the 1st
respondent without reference to all the players in the presidential election contest"
258. Be that as it may, Mr Nyamodi persistently argued that the conduct by the 1st and 2nd respondents, to
wit; of declaring results solely based on Forms 34B without reference to Forms 34A; of not scanning all
Forms 34A and simultaneously transmitting them to the NTC; of reconguring Form 34C to exclude
the Form 34A tally and only include the Forms 34B tally; of introducing the language of statistics as
opposed to results; that all these actions, were necessitated, nay, required by the decision of the Court
of Appeal in the Maina Kiai decision.
259. We were at pains to understand how the Court of Appeal decision in that case, could have provided a
judicial justication for the conduct of the 1stand 2nd respondents. The Attorney General, appearing
as amicus curiae, having been so admitted, and despite having been clearly restrained from submitting
on the so called impact of the Maina Kiai decision, also appeared to suggest, in his closing remarks
that somehow, the Appellate Court‘s decision in that case, had changed the landscape of the conduct
of elections in the Country.
260. In the above context, we reiterate that the main questions that this Court has to grapple with at this
stage are:
a. Whether the 2nd respondent declared the results of the presidential election before he had
received all the results tabulated on Forms 34A from all the polling stations.
b. Whether all the Forms 34A had been electronically transmitted from the polling stations to
the National Tallying Centre.
261. We have read the extensively reasoned and powerfully rendered decision by the Court of Appeal in
Maina Kiai. We nd nowhere in that decision where, the learned judges of appeal suggested, or even
appeared to suggest that by arming the High Court‘s decision which had declared section 39 (2) and
(3) of the Elections Act, unconstitutional, the Court of Appeal, somehow for unstated reasons, lent
judicial imprimatur to the 1st and 2nd respondent to either circumvent, or simply ignore the provisions
of Section 39(1C) of the Elections Act. On the contrary, the appellate court‘s decision was an unstinting
rearmation, if not a restatement of the letter and spirit of the constitutional principles embodied in
articles 81, 86, and 138 (3) (c), relating to the conduct of elections. And we have shown why that is so.
262. Section 39(1C) of the Elections Act for avoidance of doubt provides that:
"For purposes of a presidential election, the Commission shall-
a. Electronically transmit, in the prescribed form, the tabulated results of an

election for the President from a polling station to the constituency tallying
b. Tally and verify the results received at the national tallying centre ; and
c. Publish the polling result forms on an online public portal maintained by the
Commission.
263. Clearly, with this provision in mind, the Court of Appeal in Maina Kiai decision, was categorical as
it rendered itself thus:
"We are satised that with this elaborate system, the electronic transmission of the already
tabulated results from the polling stations, contained in the prescribed forms, is a critical way
of safeguarding the accuracy of the outcome of elections, and do not see how the appellant
or any of its ocers (read 1st respondent) can vary or even purport to verify those results…"
Further, the Court of Appeal stated thus:
"The appellant, as opposed to its chairperson, upon receipt of prescribed forms containing
tabulated results for election of president electronically transmitted to it from the near
40,000 polling stations, is required to tally and verify the results…"
265. The appellate court had earlier made a pronouncement with which we are in total agreement, to the
eect that:
"It is clear …that the polling station is the true locus for the free exercise of the voters‘ will.
The counting of the votes as elaborately set out in the Act and the Regulations, with its open,
transparent and participatory character using the ballot as the primary material, means, as it
must, that the count there is clothed with a nality not to be exposed to any risk of variation
or subversion."
266. Given this very clear elucidation of the law regarding the imperative for electronic transmission of
results from the polling station to the NTC, how could the Court of Appeals‘ decision in Maina Kiai
have provided a justication for declaring the results of the election of the president without reference
to Forms 34A" How was it a basis for the reconguration of Form 34C so as to render Forms 34A
irrelevant in the nal computation of the results" But most critically, how did the Court of Appeal‘s
decision relieve the 1st respondent from its statutory responsibility of electronically transmitting in
the prescribed form, the tabulated results of an election for the president from a polling station to the
CTC and to the NTC in accordance with section 39(1C) of the Elections Act"
267. At the end of the day, neither the 1st nor the 2nd respondent had oered any plausible response to the
question as to whether all Forms 34A had been electronically transmitted to the NTC as required by
section 39 (1C) of the Elections Act. What remained uncontroverted however, was the admission by
Ezra Chiloba, that as of August 14, 2017, three days after the declaration of results, the 1st respondent
was not in a position to supply the petitioner with all Forms 34A. Counsel for the 1st and 2nd
respondents, by insisting that the presidential results were declared on the basis of Forms 34B, all of
which were available, also implicitly admitted that not all Forms 34A were available by the time the 2nd
respondent declared the nal results for the election of the president.
268. In addition to the above and relevant to this aspect of the petition, pursuant to an application by
the petitioners, the court issued an order requiring the 1st respondent to supply the petitioners and
the 3rd respondent with all the scanned and transmitted Forms 34A and 34B from all the 40, 883
polling stations on a read only basis with the option to copy in soft version. Had the court‘s order been
complied with, it would have unraveled the mysterious puzzle surrounding Forms 34A. Regrettably,
according to the information made available to court, by its appointed experts, the 1st respondent only
allowed read-only access to this information without the option to copy in soft version only two hours
to the closure of court proceedings which never fully happened anyway. By this time however, the
puzzle had been unraveled in the mind of the court and we shall shortly explain why.
268. In any event, it is claimed in the petition, and IEBC in its response conceded, that two days to the
election date, IEBC announced that it was going to be unable to electronically transmit results from
11,000 polling centres because they were o the range of 3G and 4G network. Consequently, its ocers
would have to move to spots where they could get network to be able to transmit. Come the election
date on August 8, 2017, IEBC claimed it was unable to transmit results from those stations. According
to submissions by counsel for IEBC, such inhibition set in place the use of a complementary system
of transmission of results envisaged under Section 44A of the Elections Act, which is in essence the
physical delivery of Forms 34A to the CTC and hence the delay in the declaration of results from those
polling stations.
269. With tremendous respect, we cannot accept IEBC‘s said explanation. Failure to access or catch 3G and/
or 4G network, in our humble view, is not a failure of technology. Surely IEBC‘s ICT ocials must
have known that there are some areas where network is weak or totally lacking and should have made
provision for alternative transmission. It cannot have dawned on IEBC‘s ICT ocials, two days to the
elections, that it could not access network in some areas.
270. In stating so, we note that under regulations 21, 22, and 23 of the Elections (Technology) Regulations
2017, IEBC was required to engage a consortium of telecommunication network service providers and
publish the network coverage at least 45 days prior to the elections. In that regard, we take judicial
notice of the fact that, in one of its press briengs preceding the elections, IEBC assured the country
that it had carefully considered every conceivable eventuality regarding the issue of the electronic
transmission of the presidential election results, and categorically stated that technology was not going
to fail them. IEBC indeed armed that it had engaged three internet service providers to deal with any
network challenges. We cannot therefore accept IEBC‘s explanation of alleged failure of technology in
the transmission of the presidential election results. The so-called failure of transmission was in our
view a clear violation of the law.
271. In any case, in his adavit, Mr Muhati, IEBC‘s ICT director, as stated, averred that in polling stations
o the range of 3G and 4G network coverage, Presiding Ocers (POs) were instructed to move
to points with network coverage or to the Constituency Tallying Centres in order to electronically
transmit results. It is important to note that once the POs, who were o the network range, scanned
the results into Forms 34A and typed the text messages of the same into the KIEMS and pressed the
submit key, a process IEBC told the country was irreversible, all that remained was for the POs to move
to vantage points where 3G or 4G network would be picked and the details could automatically be
transmitted in seconds.
272. As is also clear from the information posted in IEBC‘s website, among the 11,0000 polling stations
IEBC claimed were o the 3G and 4G range are in Bomet; Bungoma; Busia; Homa Bay; Kajiado;
Kericho; Kiambu; Kisumu; Kisii; Kirinyaga; Nyeri; Siaya; and Vihiga Counties. It is common
knowledge that most parts of those Counties have fairly good road network infrastructure. Even if
we were to accept that all of them are o the 3G and/or 4G network range, it would take, at most, a
few hours for the POs to travel to vantage points from where they would electronically transmit the
results. That they failed to do that is in our view, an inexcusable contravention of Section 39(1C) of
the Elections Act.
273. We further note that at the time of declaration of results, IEBC publicly admitted that it had not
received results from 11,883 polling stations and 17 constituency tallying centres; that in its letter of
August 15, 2017, IEBC also admitted that it had not received authentic Forms 34A from 5,015 polling
stations representing upto 3.5 million votes.
274. Dr Aukot, the 1st interested party, in the above context echoed the petitioners‘ case that the whole
process of counting, tallying and transmission of results from polling stations to the CTC and nally
to the NTC lacked fairness and transparency. That IEBC itself admitted that it had network problems
which hindered its prompt transmission of results but by the time of announcement of results,
transmission had been completed.
275. What was IEBC‘s answer to the above contention" In his submissions before us, Mr Nyamodi, learned
counsel for IEBC outlined to the court the mode of the transmission process of the results and
submitted that after the manual lling in of the Form 34A, the POs then keyed in the results into
the KIEMS kit, took the image of the Form 34A and then simultaneously transmitted the same
to the Constituency and National Tallying Centres. Our understanding of this process is that the
gures keyed into the KIEMS corresponded with those on the scanned images of Forms 34A. In the
circumstances, we do not understand why those gures, which learned counsel referred to as mere
statistics that did not go into the determination of the outcome of the results, diered.
276. In these circumstances, bearing in mind that IEBC had the custody of the record of elections, the
burden of proof shifted to it to prove that it had complied with the law in the conduct of the
presidential election especially on the transmission of the presidential election results and it failed to
discharge that burden.
277. Of further note is that IEBC strenuously opposed the petitioners‘ application for access to its servers,
claiming that such access would compromise the security of the data in those servers. After considering
the application, we overruled that objection and partly allowed the application. Though we did not
therefore accept IEBC‘s said claim of compromising the security of its servers, considering the fact that
having spent billions of taxpayers‘ money IEBC should have set a robust backup system, nevertheless
to assuage those fears, we granted the petitioners a read only access which included copying where
the petitioners so wished. The report from the court appointed IT experts, Professor Joseph Sevilla
and Professor Elijah Omwenga, holders of PhDs on IT and lecturers in Strathmore and Kabianga
Universities respectively, shows clear reluctance on the part of IEBC to fully comply with this court‘s
order of August 28, 2017 to provide the information requested.
278. In summary the following are the items that were not availed to the petitioners; the 3rd respondent
and the court.
a. Firewalls without disclosure of the software version. IBEC refused to provide information
on internal rewall conguration contending that doing so would compromise and aect the
vulnerability of their system. The court appointed ICT Experts disagreed with that contention
and said it was dicult to ascertain whether or not there were any hacking activities;
b. IEBC was also required to provide Certied copies of the certicates of Penetration Tests
conducted on the IEBC Election Technology System prior to and during the 2017 election
pursuant to Regulation 10 of the Elections (Technology) Regulations 2017. These were not
provided. Instead IEBC issued uncertied documents and certicates by professionals which
did not conform to that Regulation;
c. IEBC was also required to provide Specic GPRS location of each KIEMS kit used during the
presidential election for the period between August 5, 2017 and August 11, 2017. This was not
provided. IEBC instead provided the GPS locations for the polling stations which was never
ordered to be granted;
d. Documents for allocated and non-allocated KIEMS kits procured was provided. However, the
information on whether the kits were deployed or not was incomprehensive;
e. The court ordered access to Technical Partnership Agreements for IEBC Election Technology
System including a list of technical partners, kind of access they had and list of APIs for
exchange of data with partners. The documents were issued with the exception of the list of
APIs. The court appointed ICT Experts said full information on APIs would have enabled
determination of what kind of activities may have taken place;
f. The court had also ordered IEBC to provide the petitioners with the log in trail of users and
equipment into the IEBC servers, the log in trails of users and equipment into the KIEMS
database Management systems and the administrative access log into the IEBC public portal
between August 5, 2017 to date (being the date of the court order which was on August 28,
2017). These were also not provided. Instead, IEBC provided pre-downloaded logs in a hard
disk whose source it refused to disclose. The IT experts agreed with the petitioners‘ contention
that the 1st respondent should have demonstrated that the logs emanated from IEBC servers
by allowing all parties to have Read Only Access. Alternatively, the 1st respondent could have
accessed the information in the presence of the petitioners‘ agents. Partial live access was also
only purportedly provided on August 29, 2017 at about 3.50pm without ability to access the
logs or even view them. The exercise was therefore a complete violation of the court order and
the access was not useful to the parties or the court.
279. It is clear from the above that IEBC in particular failed to allow access to two critical areas of their
servers: its logs which would have proved or disproved the petitioners‘ claim of hacking into the system
and altering the presidential election results and its servers with Forms 34A and 34B electronically
transmitted from polling stations and CTCs. It should never be lost sight of the fact that these are
the Forms that Section 39(1C) specically required to be scanned and electronically transmitted to the
CTCs and the NTC. In other words, our Order of scrutiny was a golden opportunity for IEBC to
place before Court evidence to debunk the petitioners‘ said claims if IEBC had nothing to hide, even
before the Order was made, it would have itself readily provided access to its ICT logs and servers to
disprove the petitioners‘ claiMs But what did IEBC do with it" It contumaciously disobeyed the Order
in the critical areas.
280. Where does this leave us" It is trite law that failure to comply with a lawful demand, leave alone a
specic court order, leaves the court with no option but to draw an adverse inference against the party
refusing to comply.113 In this case, IEBC‘s contumacious disobedience of this court‘s order of August
28, 2017 in critical areas leaves us with no option but to accept the petitioners‘ claims that either
IEBC‘s IT system was inltrated and compromised and the data therein interfered with or IEBC‘s
113
CMAWM v PAWM, Civil Appeal 2 of 2014; [2014] eKLR (CA).
ocials themselves interfered with the data or simply refused to accept that it had bungled the whole
transmission system and were unable to verify the data.
281. The petitioners also made claims that some Forms 34A supplied to them did not relate to any
of the existing gazetted polling station/tallying centres; that while 15,558,038 people voted for the
presidential candidates, 15,098,646 voted for gubernatorial candidates and 15,008,818 voted for
Members of Parliament (MPs) raising questions as to the validity of the extra votes in the presidential
election. No satisfactory answer was given to the latter issue and we must also hold the 1st respondent
responsible for that unexplained yet important issue.
282. Having therefore shown that the transmission of results was done in a manner inconsistent with
the expectations of section 39(1C) of the Elections Act, we must of necessity return to the principles
in articles 81 and 86 of the Constitution which we have already reproduced. Of importance are the
expectations of transparency, accountability, simplicity, security, accuracy, eciency and especially,
veriability of the electoral process. These terms should be understood to refer to:
a. an accurate and competent conduct of elections where ballots are properly counted and
tabulated to yield correct totals and mathematically precise results;
b. an election with a proper and veriable record made on the prescribed forms, executed by
authorized election ocials and published in the appropriate media;
c. a secure election whose electoral processes and materials used in it are protected from
manipulation, interference, loss and damage;
d. an accountable election, whose polling station, constituency and national tallies together with
the ballot papers used in it are capable of being audited; and
e. a transparent election whose polling, counting and tallying processes as well as the
announcement of results are open to observation by and copies of election documents easily
accessible to the polling agents, election observers, stakeholders and the public and, as required
by law, a prompt publication of the polling results forms is made on the public portal.
283. Veriability must have had strong signicance in the 8th August election, because the presiding ocers
were required to verify the polling station‘s results in the presence of polling agents before sending
them to the CTC and NTC using the KIEMS KIT. The Maina Kiai decision, made it clear that Form
34A being the primary document, becomes the basis for all subsequent verications.
284. We have already addressed the import of the refusal to obey a court order and we further note that the
whole exercise of limited access to the 1st respondent‘s IT system was meant to conform and verify
both the eciency of the technology and also verify the authenticity of the transmissions allegedly
made to the CTC and NTC. Non-compliance and failure, refusal or denial by IEBC to do as ordered,
must be held against it.
285. What of article 138 (3) (c) of the Constitution" It provides that:
"in a presidential election- after counting the votes in the polling stations, the Independent
Electoral and Boundaries Commission shall tally and verify the count and declare the result."
287. The critical element here is the duty placed upon the Commission to verify the results before declaring
them. To ensure that the results declared are the ones recorded at the polling station. Not to vary,
change or alter the results.
288. The duty to verify in article 138 is squarely placed upon the Independent Electoral and Boundaries
Commission (the 1st respondent herein). This duty runs all the way, from the polling station to
the constituency level and nally, to the National Tallying Centre. There is no disjuncture in the
performance of the duty to verify. It is exercised by the various agents or ocers of the 1st respondent,
that is to say, the presiding ocer at a polling station, the returning ocer at the constituency level,
and the Chair at the National Tallying Centre.
289. The verication process at all these levels is elaborately provided for in the Elections Act and the
regulations thereunder. The simultaneous electronic transmission of results from the polling station
to the Constituency and National Tallying Centre, is not only intended to facilitate this verication
process, but also acts as an insurance against, potential electoral fraud by eliminating human
intervention/intermeddling in the results tallying chain. This, the system does, by ensuring that there
is no variance between, the declared results and the transmitted ones.
290. In the presidential election of August 8, 2017 however, the picture that emerges, is that things did not
follow this elaborate, but clear constitutional and legislative road map. It has been established that at
the time the 2nd respondent declared the nal results for the election of the President on August 11,
2017, not all results as tabulated in Forms 34A, had been electronically and simultaneously transmitted
from the polling stations, to the National Tallying Centres. The 2nd respondent cannot therefore be
said to have veried the results before declaring them.
291. The said verication could only have been possible if, before declaring the results, the 2nd respondent
had checked the aggregated tallies in Forms 34B against the scanned Forms 34A as transmitted in
accordance with section 39 (1C) of the Elections Act. Given the fact that all Forms 34 B were generated
from the aggregates of Forms 34A, there can be no logical explanation as to why, in tallying the Forms
34B into the Form 34C, this primary document (Form 34A), was completely disregarded.
292. Even if one were to argue, which at any at rate, is not the case here, that the verication was done against
the original Forms 34A from all the polling stations, which had been manually ferried to the tallying
centre, this would still beg the question as to where the scanned forms were, and why the manually
transmitted ones, arrived faster than the electronic ones.
293. The failure by the 1st respondent to verify the results, in consultation with the 2nd respondent, before
the latter declared them, therefore went against the expectation of article 138(3)(c) of the Constitution,
just as the failure to electronically and simultaneously transmit the results from all the polling stations
to the National Tallying Centre, violated the provisions of section 39 (1C) of the Elections Act. These
violations of the Constitution and the law, call into serious doubt as to whether the said election can
be said to have been a free expression of the will of the people as contemplated by Article 38 of the
Constitution.
294. It was further urged in court by a number of counsel for the 1st and 2nd respondent, that by
disregarding Forms 34A, and exclusively relying on Forms 34B (many of whose authenticity would
later be called into question), in the tallying process, the said respondents were simply complying with
the Court of Appeal‘s decision in Maina Kiai. We have already held, that we nd little or nothing in
this decision, to suggest that, by deciding the way it did, the appellate court restrained or barred the 1st
respondent from verifying the results before declaring them, or that it was relieving the former from
the statutory duty of electronically transmitting the results. What the 2nd respondent was barred from
doing by the Court of Appeal and the High Court, was to vary, alter, or change the results relayed to
the National Tallying Centre from the polling stations and Constituency Tallying Centres, under the
guise of verifying.
295. But be that as it may, how spectacularly re-assuring to the Kenyan people would it have been if the
2nd respondent, on that night of August 11 2017, had commenced the declaration of the results, with
these words:
Fellow Kenyans, the results I am about to declare, are exclusively based on Forms 34B which I
have received from all the 290 constituency tallying centres country-wide. I have not veried
these results against those tabulated on Forms 34A from all the 40,800 polling stations
countrywide. This may sound strange, but I am simply doing this in compliance with the
Court of Appeal‘s decision in Maina Kiai. This decision by the appellate court requires me
to treat the results as tabulated by the various returning ocers, as nal and not to attempt,
to verify them against the electronically transmitted Forms 34A. You will therefore, have to
bear with me, as court orders must at all times, be obeyed. However, all hope is not lost,
since I have availed all the Forms 34A on our Public Portal. Any candidate, election observer,
or member of the public, is free to download these forms and compare the results thereon
against the ones I am about to declare. If such an exercise should reveal serious discrepancies,
then one can petition the Supreme Court to scrutinize them, and even annul them, since
the Supreme Court has original and exclusive jurisdiction over such disputes…
295. He failed to do the above and apart from the duty to verify, the 1st respondent also has the responsibility
to ensure that the system of voting, counting and tallying of results is veriable. This is in conformity
with article 86 of the Constitution which requires that:
At every election, the Independent Electoral and Boundaries Commission shall ensure that-
a. whatever voting method is used, the system is simple, accurate, veriable,

secure, accountable and transparent;
b. the votes cast are counted, tabulated, and the results announced promptly by
the presiding ocer at each polling station;
c. the results from the polling stations are openly and accurately collated and
promptly announced by the returning ocer; and
d. appropriate structures and mechanisms to eliminate electoral malpractice are

put in place, including the safekeeping of elections materials.
296. This provision places upon the 1st respondent the onerous responsibility of devising and deploying
election systems that the voter can understand. The 1st respondent must further be expected to provide
access to crucial information that can enable, either a candidate, or a voter to cross check the results
declared by it with a view to determining, the integrity and accuracy thereof. In other words, the
numbers must just add up.
297. We note in the above regard, that even where Parliament found it necessary to make provision for a
complementary system, it would not escape from the dictates of Article 86 of the Constitution. Hence,
section 44A of the Elections Act provides:
Notwithstanding the provisions of section 39 and Section 44, the Commission shall put
in place a complementary mechanism for the identication of voters and transmission of
election results that is simple, accurate, veriable, secure, accountable and transparent to
ensure that the Commission complies with the provisions of article 38 of the Constitution.
298. When called upon to explain why all the Forms 34A had not been scanned, transmitted and published
on an online portal, in line with article 39 of the Elections Act, the 1st respondent, through counsel,
alluded to some form of complementary mechanism. However, the description of such a mechanism
did not appear to us to meet the yardsticks of veriability inbuilt in the Constitution and section 44A
of the Elections Act.
299. In their submissions, counsel for the respondents and the 2nd interested party urged us not to annul
the election on the basis of minor inadvertent errors. We entirely agree. We have already categorically
acknowledged the fact that no election is perfect. Even the law recognizes this reality. But we nd it
dicult to categorize these violations of the law as minor inadvertent errors. IEBC behaved as though
the provisions of sections 39, 44 and 44A did not exist. IEBC behaved as though the provisions of
article 88 (5) of the Constitution requiring it to …exercise its powers and perform its functions in
accordance with the Constitution and the national legislation did not exist. IEBC failed to observe
the mandatory provisions of article 86 of the Constitution requiring it to conduct the elections in
a simple, accurate, veriable, secure, accountable and transparent manner. Where is transparency or
veriability when IEBC, contrary to articles 35 and 47 of the Constitution, worse still, in contumacious
disobedience of this court‘s order, refuses to open its servers and logs for inspection"
300. Having therefore carefully considered all the adavit evidence, and submissions of counsel for all the
parties, we nd and hold, that, the petitioners herein have discharged the legal burden of proving
that the 2nd respondent, declared the nal results for the election of the president, before the 1st
respondent had received all the results from Forms 34A from all the 40,883 polling stations contrary
to the Constitution and the applicable electoral law. We also nd and hold that, the 2nd respondent,
declared, the said results solely, on the basis of Forms 34B, some of which were of dubious authenticity.
We further nd that the 1st respondent in disregard of the provisions of section 39 (1C), of the Elections
Act, either failed, or neglected to electronically transmit, in the prescribed form, the tabulated results
of an election of the president, from many polling stations to the National Tallying Centre.
301. At this juncture, we must restate that, no evidence has been placed before us to suggest that, the
processes of voter registration, voter identication, manual voting, and vote counting were not
conducted in accordance with the law. As a matter of fact, nobody disputes the fact that on August 8,
2017, Kenyans turned out in large numbers, endured long hours on queues and peacefully cast their
votes. However, the system thereafter went opaquely awry and whether or not the 3rd respondent
received a large number of votes becomes irrelevant because, read together, sections 39(1C) and 83 of
the Elections Act say otherwise.
302. In passing only, we must also state that whereas the role of observers and their interim reports
were heavily relied upon by the respondents as evidence that the electoral process was free and fair,
the evidence before us points to the fact that hardly any of the observers interrogated the process
beyond counting and tallying at the polling stations. The interim reports cannot therefore be used to
authenticate the transmission and eventual declaration of results.
303. For the above reasons, we nd that the 2017 presidential election was not conducted in accordance
with the principles laid down in the Constitution and the written law on elections in that it was, inter
alia, neither transparent nor veriable. On that ground alone, and on the basis of the interpretation we
have given to section 83 of the Elections Act, we have no choice but to nullify it.
ii. Whether there were irregularities and illegalities committed in the conduct of the 2017
Presidential Election and if in the armative, what was their impact, if any, on the integrity
of the election"
304. While the impugned election was conducted in violation of relevant constitutional principles, the
same was also alleged to have been fraught with illegalities and irregularities that rendered its result
unveriable and thus indeterminate. Illegalities refer to breach of the substance of specic law while
irregularities denote violation of specic regulations and administrative arrangements put in place.
305. The petitioners in that context claim that the August 8, 2017 presidential election, was conducted
in an environment characterized by many systematic and systemic illegalities and irregularities that
fundamentally compromised the integrity of the election, contrary to the principles laid down in the
Constitution. The alleged illegalities and irregularities, ranged from blatant non-compliance with the
law, to infractions of procedure, some of which were requirements of the laws and regulations relating
to the election, while others, had been put in place by the 1st respondent, for the management of the
elections.
(a) Illegalities Allegations of Undue Inuence, Bribery and voter intimidation

306. In addressing the above issue, at paragraph 37 of his supporting adavit, Raila Odinga deposed that the
3rd respondent, Uhuru Kenyatta, brazenly violated section 14 of the Elections Act (he must have meant
Section 14 of the Election Offences Act) by advertising and publishing in the print and electronic as well
as on billboards, achievements of his government. Section 14 of the Election Offences Act provides that:
No government shall publish any advertisements of achievements of the respective

government either in the print media, electronic media, or by way of banners or hoardings
in public places during the election period.
307. This prohibition is clearly what article 81(e)(ii) refers to as improper inuence. In our view, the
rationale behind this prohibition, in the context of this case is that whatever achievements the
current government may have made, resulting from expenditure of public funds, should not be taken
advantage of by the government as a campaign tool.
308. Further, section 14(1) and (2) of the Election Offences Act provides:
1. Except as authorized under this Act or any other written law, a candidate, referendum
committee or other person shall not use public resources for the purpose of campaigning
during an election or a referendum.
2. No government shall publish any advertisements of achievements of respective government

either in the print media, electronic media, or by way of banners or hoardings in public places
during the election period.
309. In response to the allegations of improper inuence‘ and misuse of public resources, the 3rd
respondent submitted that the petitioners had not adduced evidence showing the particulars of such
sponsorship and that in any case, it is the mandate of the Presidential Delivery Unit to enhance the
accountability of a government to its citizens by availing any information relating to ongoing projects.
310. We note in the above regard that the 1st petitioner has not attached any material evidence to support
his proposition. That being the case, we are unable to make any determination on this issue for lack
of material particulars. Furthermore, the 3rd respondent submitted that the question whether he was
allegedly sponsoring the advertisement of the government‘s achievement in the print and electronic
media is pending at the High Court in the case of Apollo Mboya v the Attorney-General and 3 others114
and Jack Munialo & 12 others v the Attorney-General & the Independent Electoral and Boundaries
Commission115. The petitioners did not contest this averment and in this regard as we have previously
held, we cannot adjudicate on an issue which is still the subject of judicial determination at the High
Court. Our advisory opinion in the matter of In Re The Matter of the Interim Independent Electoral
Commission116, succinctly speaks to this point:
The two cases seek the interpretation of the Constitution, with the object of determining the
date of the next elections. Those petitions raise substantive issues that require a full hearing
of the parties; and those matters are properly lodged, and the parties involved have led their
pleadings and made claims to be resolved by the High Court. To allow the application now
before us, would constitute an interference with due process, and with the rights of parties
to be heard before a court duly vested with jurisdiction; allowing such an application would
also constitute an impediment to the prospect of any appeal from the High Court up to
the Supreme Court. This is a situation in which this court must protect the jurisdiction
entrusted to the High Court.
311. Further to the above nding, we also note the petitioners‘ further contention that the 1st respondent
failed to act on the 3rd respondent‘s alleged violation of the law by his misuse of public resources. In
response, the 2nd respondent stated that he wrote a letter dated June 21, 2017, informing the Director
of Public Prosecutions (DPP) about the alleged misconduct of the 3rd respondent. The said letter is
attached to the Adavit sworn by Wafula Chebukati, and it reads as follows:
…In accordance with section 14 of the Election Oences Act, 2016, the Commission
published a notice in the press advising candidates against the use of public resources
in campaigns. The demised notice required all candidates who are current members of
Parliament, county governors, deputy governors and members of the county assembly to
declare the facilities attached to them, or any equipment normally in the custody of the
candidate by virtue of such oce.
Following that publication, the Commission has received declaration from only twelve
candidates…in that regard, any other person using the state resources other than those
registered with the Commission are committing oences to which, upon sucient evidence
being gathered, should be prosecuted swiftly. This applies to Governors, Senators, Members
of the National Assembly, Members of the County Assembly and Women Members of the
National Assembly. [Emphasis added.]
312. We note further that upon considering the contents of the above letter, and contrary to submissions by
the 1st and 2nd respondents, the above letter did not apply to the holder of the oce of the presidency
in which category the 3rd respondent falls. Furthermore, we note that section 14(3) of the Election
Offences Act which provides for the Commission‘s enforcement powers, does not apply to persons
holding the oce of the President. For clarity section 14(3) provides:
For the purposes of this section, the Commission shall, in writing require any candidate,
who is a Member of Parliament, a county governor, a deputy governor or a member of a
114
Apollo Mboya v the Attorney-General and 3 others, Petition 162 of 2017.
115
Jack Munialo & 12 Others v the Attorney-General & the Independent Electoral and Boundaries Commission, Petition 182 of 2017.
116
In Re The Matter of the Interim Independent Electoral Commission, Reference 2 of 2011; [2011] eKLR.
county assembly, to state the facilities attached to the candidate or any equipment normally
in the custody of the candidate by virtue of that oce.
313. Having that in mind and fortied by our observation that the interpretation of Section 14 of the
Election Offences Act is a live matter at the High Court, we are unable to address our minds into any
allegation that touches on this section. That is the end of that matter.
314. We further note, in paragraph 34 of his said adavit, Raila also claimed that while campaigning in
Makueni County on August 2, 2017, President Uhuru Kenyatta threatened Chiefs in the area with dire
consequences if he won for failure to campaign for him. That such an action also goes against article
81(e)(ii) of the Constitution which outlaws intimidation in the electioneering process. In proof of this
assertion, the petitioners have attached transcripts of video evidence in the supplementary adavit
sworn by Ms Ogla Karani, detailing the allegedly oending words spoken by the 3rd respondent. The
said words reads as follows:
"…Naona walipewa kazi na wale wengine wajue pikipiki wanatumia allowances wanaopata
wajue ni za Jubilee. Wenzenu walikuwa wanawafukuza. Tutaonana na nyinyi baada ya
uchaguzi tunaelewana wazee tutakuwa na nyinyi, usione sisi hatujui nini inaendelea dunia
hii, tunaelewa kabisa."
315. In response, the 3rd respondent relies on an adavit sworn by Dr Karanja Kibicho, who avers that as
the Principal Secretary, Ministry of Interior & Co-ordination of National Government, he received
information to the eect that, some Chiefs in Makueni County, whose names are provided in the said
adavit, were unlawfully using their positions and government issued motor cycles to campaign for
the petitioners. He thereafter reported the same to the 3rd respondent who warned the Chiefs in that
area not to take any political position nor use public resources to campaign for anyone. According to
the said Dr Kibicho, it is against that background that the 3rd respondent uttered the remarks now
impugned by the petitioners.
316. In the above context, section 10 of the Election Offences Act provides:
Undue Inuence
(1) A person who directly or indirectly in person undue inuence or through

another person on his behalf uses or threatens to use any force, violence
including sexual violence, restraint, or material, physical or spiritual injury,
harmful cultural practices, damage or loss, or any fraudulent device, trick or
deception for the purpose of or on account of""
a. Inducing or compelling a person to vote or not to vote for a

particular candidate or political party at an election;
b. Inducing or compelling a person to refrain from becoming a

candidate or to withdraw if he has become a candidate; or
c. Impeding or preventing a person from being nominated as a

candidate or from being registered as a voter, Commits the
oence of undue inuence.
(2) …
(3) A person who directly or indirectly by duress or intimidation""
a. Impedes, prevents or threatens to impede or prevent a voter from
voting; or
b. In any manner inuences the result of an election, commits an

oence.
(4) …
317. What then is the meaning of the term undue inuence in the context of an electoral malpractice and
particularly as used under section 10 above" In India, the meaning of the term undue inuence‘ is found
in section 171(C) of the Penal Code which denes the oence of undue inuence at an election as:
Undue inuence at elections
171C.
(1) Whoever voluntarily interferes or attempts to interfere with the

free exercise of any electoral right commits the oence of undue
inuence at an election.
2. Without prejudice to the generality of the provisions of sub-

section (1), whoever–
a. threatens any candidate or voter, or any other

person in whom a candidate or voter is interested,
with injury of any kind, or
b. induces or attempts to induce a candidate or voter

to believe that he or any person in whom he is
interested will become or will be rendered an object
of Divine displeasure or of spiritual censure, shall
be deemed to interfere with the free exercise of the
electoral right of such candidate or voter, within the
meaning of sub-section (1).
3. A declaration of public policy or a promise of public action or

the mere exercise of a legal right without intent to interfere with
an electoral right, shall not be deemed to be interference within
the meaning of this section.
318. Though the wording of the Indian Penal Code quoted above is materially dierent from Section 10 of
the Election Offences Act, the meaning injected into the above legal provisions, shows its applicability
in the Kenyan context. The Supreme Court of India in the consolidated cases of Charan Lal Sahu &
others v Giani Zail Singh and another; Nem Chandra Jain v Giani Zail Singh; Charan Singh and others
v Giani Zall Singh117 thus explicitly stated that the test was whether there was an interference or an
attempted interference with the free exercise of any electoral right. Similarly, Section 10 above, whose
marginal note is undue inuence‘ forbids any impediment of a person‘s exercise of the electoral right.
In India, the electoral right of an elector, is dened under Section 171A(b) of the Indian Penal Code,
as "the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote
or refrain from voting at an election." This is comparable to article 38(3) of our Constitution which
117
Charan Lal Sahu & others v Giani Zail Singh and another; Nem Chandra Jain v Giani Zail Singh; Charan Singh and athers v Giani
Zall Singh 1984 AIR 309; 1984 SCR (2) 6.
confers certain political rights on every citizen without any restrictions including the right to vote by
secret ballot in an election.
319. The above case of India laid down a distinction between mere canvassing for votes and acts of undue
inuence. In doing so, the Supreme Court pronounced itself as follows in the above case:
If the mere act of canvassing in favour of one candidate as against another were to amount
to undue inuence, the very process of a democratic election shall have been stied because,
the right to canvass support for a candidate is as much important as the right to vote for a
candidate of one's choice. Therefore, in order that the oence of undue inuence can be said
to have been made out within the meaning of section 171C of the Penal Code, something
more than the mere act of canvassing for a candidate must be shown to have been done by
the oender. That something more may, for example, be in the nature of a threat of an injury
to a candidate or a voter as stated in sub-section 2(a) of section 171C of the Penal Code or,
it may consist of inducing a belief of divine displeasure in the mind of a candidate or a voter
as stated in sub-section 2(b). The act alleged as constituting undue inuence must be in the
nature of a pressure or tyranny on the mind of the candidate or the voter. It is not possible
to enumerate exhaustively the diverse categories of acts which fall within the denition of
undue inuence. It is enough for our purpose to say, that of one thing there can be no doubt:
the mere act of canvassing for a candidate cannot amount to undue inuence within the
meaning of section 171C of the Penal Code.
320. The Supreme Court of India had also held in an earlier case of Shiv Kirpal v Shri VV Giri118 that:
The language used in the denition of "undue inuence" implies that an oence of undue
inuence will be held to have been committed if the elector having made up his mind to
cast a vote for a particular candidate does not do so because of the act of the oender, and
this can only be if he is under the threat or fear of some adverse consequence. Whenever any
threat of adverse consequences is given, it will tend to divert the elector from freely exercising
his electoral right by voting for the candidate chosen by him for the purpose…. But, in cases
where the only act done is for the purpose of convincing the voter that a particular candidate
is not the proper candidate to whom the vote should be given, that act cannot be held to be
one which interferes with the free exercise of the electoral, right.
321. The test of undue inuence is therefore, whether the 3rd respondent‘s conduct, if satisfactorily proved,
created an impression in the mind of a voter that adverse consequences would follow as a result of their
exercise of their political choices. In applying that test we cannot however ignore the deposition of Dr
Kibicho who impugned the alleged non- impartiality on the part of two Chiefs who are public ocers.
Thus the 3rd respondent‘s statement above, must also be tested against the testimony of Dr Kibicho
which evidence has not been controverted.
322. In the above context therefore, has a case been made against the 3rd respondent, for the commission of
the oence of undue inuence within the required standard of proof" Have the petitioners dispelled
the 3rd respondent‘s position that he was merely giving a directive that it was against the law for a public
ocer to openly take political positions in support of one candidate against the other" In this context,
words alone, without any other demonstrable evidence are not sucient to enable this court make
a conclusive nding on this issue. Further, we note that the evidence of Dr Kibicho, explaining the
context within which the 3rd respondent uttered the said words, remains undisputed. Consequently,
118
Shiv Kirpal v Shri VV Giri 1971 SCR (2) 197.
after carefully considering the evidence before us, we hold that the petitioners have not proved their
case on this issue to the required standard.
323. The petitioners further alleged that the 3rd respondent and the Deputy President being contestants
in the presidential elections are guilty of corruptly inuencing voters in the lead up to the August 8,
2017 general election by paying reparations to victims of 2007 Post-election violence (PEV) in various
parts of the country and used the platforms to canvass for votes for personal political gain in the said
electoral areas contrary to the Election Oences Act. In proof of this assertion, the petitioners rely on
the adavit of Ms Olga Karani who attaches a transcription of the 3rd respondent‘s speech during his
tour of Kisii and Nyamira Counties during the campaign period.
324. In response, the 3rd respondent relies on the adavit sworn by Dr Kibicho aforesaid who stated
that there is a National Consultative Coordination Committee (Committee) which is tasked with the
obligation to manage the Internally Displaced Persons (IDP) aairs on behalf of the Government.
That any such funds are approved by Parliament and released by the Committee into the beneciaries‘
accounts and the 3rd respondent is not involved in the matter at all.
325. We have perused the attached video transcript, which is in the form of an interview conducted by one
of the local news reporting station. We note that the transcript does not contain a satisfactory basis
or convincing evidence to the eect that the 3rd respondent acted in any inappropriate manner with
regard to the release of funds to IDPs.
326. The 1st petitioner‘s further complaint on illegalities is that President Uhuru Kenyatta engaged Cabinet
Secretaries who openly abused their position and used State resources in actively soliciting votes for
him. Referring to article 152(4)(a) of the Constitution, the petitioners submitted that every Cabinet
Secretary swears or arms to have obedience to the Constitution of Kenya and ought therefore to be
impartial in political contests as is required under the Constitution.
327. In a supplementary adavit sworn by Olga Karani, the petitioners list various incidences in which,
they claim that Cabinet Secretaries campaigned for the 3rd respondent. At paragraph 10 of the said
adavit, the deponent avers that, Mr Joe Mucheru, the Cabinet Secretary in charge of Information,
Communication and Technology, at an interview conducted by a local television station, stated that
he was at liberty to campaign for the 3rd respondent because no law barred him from doing so.
Other Cabinet Secretaries also mentioned in Ms Karani‘s adavit includes; Eugene Wamalwa, Mwangi
Kiunjuri and Najib Balala.
328. The petitioners in their submission on these issues, brought to the attention of the court what they
consider to be an inconsistency in the law and in this respect, they urged the court to declare section
23 of the Leadership and Integrity Act to be unconstitutional. In that regard, section 23 provides:
1. An appointed State ocer, other than a Cabinet Secretary or a member of a County executive
committee shall not, in the performance of their duties""
a. Act as an agent for, of further the interests of a political party or candidate in an

election; or
b. Manifest support for or opposition to any political party or candidate in an election.
2. An appointed State Ocer or public ocer shall not engage in any political activity that may
compromise or be seen to compromise the political neutrality of the oce subject to any laws
relating to elections.
3. Without prejudice to the generality of sub-section (2) a public ocer shall not ""
a. Engage in the activities of any political party or candidate or act as an agent of a political
party or a candidate in an election;
b. Publicly indicate support for or opposition against any political party or candidate
participating in an election [Emphasis added.]
329. The Petitioners submitted that since Cabinet Secretaries are State Ocers, they ought to be impartial,
but that section 23 above gives them leeway for impartiality. The 3rd respondent contests that
submission and urges the court to disregard it since the issue of unconstitutionality was not pleaded
in the petition but was only introduced as an argument in the petitioners‘ oral submissions. The 3rd
respondent also urges that the Supreme Court in exercise of its exclusive original jurisdiction cannot
adjudicate on the unconstitutionality of an Act of Parliament since that is a matter within the domain
of the High Court in exercise of its jurisdiction under article 165 (3) (d) of the Constitution.
330. In addressing the above issue, we note that in rendering an advisory opinion In Re The Matter of the
Interim Independent Electoral Commission119, this Supreme Court noted [paragraph 43]:
"Quite clearly, the High Court has been entrusted with the mandate to interpret the
Constitution. This empowerment by itself, however, does not confer upon the High Court
an exclusive jurisdiction; for, by the appellate process, both the Court of Appeal and the
Supreme Court are equally empowered to interpret the Constitution, certainly in respect
of matters resolved at rst instance by the High Court. And while the Advisory-Opinion
jurisdiction is exclusively entrusted to the Supreme Court, the Constitution does not provide
that this Court while rendering an opinion, may not interpret the Constitution. Indeed,
interpretation of the Constitution stands to be conducted, for dierent purposes and at
dierent stages, by a vast array of constitutional organs: so, for instance, the State Law
Oce in advising Government Ministries, is entitled to interpret the Constitution as may
be necessary; and the several independent Commissions under the Constitution are similarly
entitled to interpret the Constitution as part of the performance of their respective mandates.
The Supreme Court too, for the purpose of rendering an Advisory Opinion, may take its
position as guided by its own interpretation of the Constitution. Only where litigation takes
place entailing issues of constitutional interpretation, must the matter come in the rst place
before the High Court, with the eect that interpretation of the Constitution by both the
Court of Appeal and the Supreme Court will have been limited to the appellate stages.
331. It is not in doubt therefore that the Supreme Court may in exercise of its jurisdiction such as this,
interpret the Constitution and in doing so, where the need requires, declare an oending provision of
the law to be unconstitutional. Such is a natural consequence of any legal reasoning if the court were
to maintain its delity to the law. Indeed in SK Macharia and Anor v KCB120, the Court declared
Section 14 of the Supreme Court Act to be unconstitutional. However, the present scenario is peculiar
in the sense that, the petitioners did not at the very rst instance, through their pleadings, indicate their
intentions to declare section 23 to be unconstitutional.
332. The rule of the thumb has always been that parties must be bound by their pleadings and especially
in a case such as this where the petitioner is asking the court to address its mind to the possible
unconstitutionality of a legal provision. For proper consideration therefore, and especially in order to
do justice to both the parties and the greater public interest, we cannot aord to lock our eyes to the
119
In Re The Matter of the Interim Independent Electoral Commission, Reference 2 of 2011; [2011] eKLR.
120
SK Macharia and Anor v KCB, Sup ct Application 2 of 2011; [2012] eKLR.
disadvantage placed upon the 3rd respondent especially who had no benet to bring his thoughts into
this cause.
333. In the circumstances, we are unable to nd that section 23 is unconstitutional. Let the matter be
addressed in the right proceedings in the right circumstances.
Irregularities
334. Apart from outright non-compliance with electoral law, the petitioners also claimed that the
presidential election was marred by many irregularities the cumulative eect of which fundamentally
and negatively impacted the integrity of the election.
Security Features: Now You see them, Now you see them not:
335. The most serious of the irregularities alleged by the petitioners was that many of the prescribed
Forms 34A, 34B and 34C that were used in the election had no security features. Other such forms
had dierent layouts and security features. Some forms were said to have had no serial numbers,
bar codes, ocial stamps, water marks, anti-copying, among others. In response thereto, the 2nd
respondent contended that the forms were protected by enhanced security features. Mr Mansur for
the 1st respondent submitted that the reason the petitioners could not see the security features, was
that the latter had been relying on the wrong bar-code readers which could not detect the embedded
security features.
336. The other irregularity alleged by the petitioners was that many Forms 34A and 34B did not contain
handover notes in the prescribed manner. This irregularity allegedly oended regulation 87(1) (b) of
the Election Regulations. The petitioners also contended that many other forms bore no ocial stamp
of the 1st respondent, while the stamps used on other forms were not ocial. The respondents however
contended that hand over notes and ocial stamps were not a legal requirement.
337. The petitioners also alleged that many Forms 34A and 34B were signed by unknown persons, while
many others were signed by the same presiding or returning ocers. Some Forms 34A originated from
un-gazzeted polling stations. Finally, the petitioners alleged that not all pages in some Forms 34B were
signed.
338. In response thereto, the 1st respondent argued that regulation 83 only provides for signing of the forms
and that there is no obligation owing from this regulation that requires a returning ocer to indicate
his/her name while signing. Similarly, the 1st respondent argued, that the law does not require that all
pages should be signed. Regarding the claim that many forms were signed by the same person in similar
handwriting, contrary to regulation 5 (1A)(a), the respondent contended that the said claim had not
been backed by evidence from a hand-writing expert. As for some Forms 34A having originated from
un-gazetted polling stations, the respondent dismissed such a claim on grounds that there were no such
polling stations.
339. The petitioners further claimed that there were numerous discrepancies between the results declared
in Forms 34A and 34B from various polling stations across the Country, contrary to section 39 of the
Elections Act, as read with regulation 82 of the Regulations thus compromising the integrity of the
election. In response, the respondents, countered the accuracy in some of the allegations by providing
contrary gures through a number of deponents. However, the 1st respondent also admitted that
indeed there were discrepancies in the results in Forms 34A and 34B spread across the Country but
attributed the discrepancies to human errors and fatigue of ocials. The respondent contended that
the discrepancies in question did not in any event aect the result of the election.
340. We reiterate in the above context that the petitioners applied for an order for scrutiny and audit of all
the returns of the Presidential Election including but not limited to Forms 34A, 34B and 34C. This
application was premised upon the petitioners‘ assertion that the elections were conducted so badly
and marred with such grave irregularities that it did not matter who won or was declared the winner.
As such, this court granted an order for scrutiny and access in the following relevant terms:
(72) ….the petitioners, as well as the 3rd respondent shall be granted a read only access, which
includes copying (if necessary) to−
q. Certied photocopies of the original Forms 34As 34Bs and 34Cs prepared at and
obtained from the polling stations by Presiding Ocers and used to generate the nal
tally of the Presidential election, and pursuant to such production, leave be granted
for the use of an aid or reading device to assist in distinguishing the fake forms from
the genuine ones.
r. Forms 34A, 34B and 34C from all 40,800 polling stations.
s. Scanned and transmitted copies of all Forms 34A and 34B.
341. It be must be understood for avoidance of doubt, that the petitioners had laid a rm foundation for
the grant of those orders because in the petition they had sought the following orders:
a. Immediately upon the ling of the petition, the 1st respondent do avail all the material
including electronic documents, devices and equipment for the Presidential Election within
48 hours.
of the 1st respondent in respect of the Presidential Election within 48 hours.
c. A specic order for scrutiny of the rejected and spoilt votes.
d. …
e. An order for scrutiny and audit of all the returns of the Presidential Election including but not
limited to Forms 34A, 34B and 34C.
f. An order for scrutiny and audit of the system and technology used by the 1st respondent in
the Presidential Election including but not limited to the KIEMS Kits, the Server(s); website/
portal.
g. …
h. …
i. …
n. …
342. The scrutiny process was conducted under the supervision of the Registrar of this court and a report
led. The report was endorsed by the petitioners and all the respondents as being a fairly accurate
reection of what the partial scrutiny had unearthed.
343. According to the report, the process started with the Registrar counting to ascertain the number of
Forms delivered by the 1st respondent. We note as per the Registrar‘s count, that the 1st respondent
availed to her the following: 1 Form 34C, 291 Forms 34B, and 41,451 Forms 34As. The Registrar also
made the following observations:
a. Certain forms 34As appeared to have been duplicated;
b. Certain forms 34As and 34Bs appeared to be carbon copies; ( c) Certain forms 34As and 34Bs
appeared to be photocopies;
(d) Some of the forms had no evidence of being stamped or signed.
344. The report nonetheless states that the petitioners chose to focus on distinguishing the genuine from
the fake forms by checking whether the forms contained the following security features namely:
the presence of a watermark using the UV reader; colour of the forms; serialization; Microtext;
X10 magnication; Column for comments on the form; Format of the forms; and Anti-copy. The
petitioners resorted to the use of a UV light reader (DoCash model) to ascertain the presence of or
otherwise of the watermark on the forMs
345. Based on that process, the Registrar‘s report can be summarized as follows; On Form 34C, the
petitioners noted that the Form 34C presented did not have a watermark and serial number and it
looked like a photocopy. On the other hand, the 3rd respondent observed that the form was a copy of
the original duly certied by an advocate of the High Court. Clearly, therefore the IEBC did not avail
to parties and the Court the original Form 34C but a copy certied by an advocate.
346. With regard to Forms 34B, the petitioners were availed with a total of 291 ForMs These were to
represent the 290 Constituencies as provided for under article 97(1) (a) of the Constitution. The
extra one form represented the diaspora vote. It is noted that in scrutinizing those forms, the parties
formulated a checklist which included conrming whether the forms had been signed and stamped
by the returning ocer and agents, and whether the hand over and take over‘ section had either been
lled or not.
347. From the above exercise, the following were the ndings; it was recorded that out of the 291 Forms
34B scrutinized 56 forms bore no watermark, 5 forms had not been signed by the returning ocer, 31
forms had no serial numbers, 32 forms had not been signed by the respective party agents, the hand
over section of 189 forms had not been lled and the take over section of 287 forms had not been lled.
348. Further, a random scrutiny of 4,299 Forms 34A across 5 Counties was undertaken to check and
conrm; whether the forms bore the watermarks and the serial numbers; whether the forms had been
signed and stamped by the presiding ocers; whether there was involvement of the party agents.
349. Some of the issues emanating from the scrutiny of Forms 34A were that:
a. some forms were carbon copies;
b. others were the original Forms 34As but did not bear the IEBC stamp;
c. other forms were stamped & scanned while others were photocopies;
d. others had not been signed.
350. The report further indicates that out of the 4,299 Forms 34As, 481 were carbon copies, but signed, 157
were carbon copies and were not signed; 269 were original copies that were not signed; 26 of the Forms
were stamped and scanned. 1 form was scanned and not stamped; 15 had not been signed by agents,
58 were photo copies of which 46 had not been signed; and 11 had no watermark security feature. All
these issues correspond with the Registrar‘s observation stated above.
351. Submitting on the ndings, SC Orengo for the petitioners contended that the report had proved
beyond reasonable doubt, that the election process was shambolic. According to Counsel, the Form
34C which was used to announce the presidential results had no security features and hence the
authenticity of the results as announced in Form 34C could not be guaranteed.
352. Counsel further contended that in totality, the number of votes aected in more than 90
Constituencies as a consequence of these irregularities could be as high as ve million. Counsel
submitted that the random sampling of the Forms 34A depicts numerous irregularities. He argued
that some of the forms used were not standardized forms and were not prepared in accordance with
the agreement between the 1st and 2nd respondents and the printer. Counsel thus urged the court to
nd that the forms did not comply with the statutory forms as required by law.
353. In response, the respondents were categorical that most of the forms met all the standard required
features. They stated that the petitioners had failed to demonstrate that any of the gures in the forms
were inconsistent with what was announced. Further, that the format of the forms was undisturbed.
354. Mr Muite, SC for the 1st respondent further contended that the only requirement under regulations
79 (2) (a) and 83 (a) is for the signing of the forms and that there was no requirement for security
features. Asked by the court to explain why some forms bore security features if it was not a requirement
of the law, Mr Muite responded that it was out of abundance of caution‘ on the part of the 1st
respondent that it did so. Counsel could however not explain why some forms bore security features
while others didn‘t if indeed they were printed by the same entity.
355. Counsel also argued that there were only 5 Forms 34B that had not been signed by the returning ocers
but that the 5 had serial numbers as well as watermarks. Counsel further argued that the petitioner
did not challenge the numbers of the votes and had not alleged that any of the gures contained in the
forms was incorrect. Counsel thus submitted that the results as announced captured and represented
the will of the Kenyan people and urged the court to dismiss this petition.
356. A number of conclusions/observations may be made from this exercise: Firstly, the Form 34C, that
was availed for scrutiny was not original. Whereas the copy availed for scrutiny was certied as a copy
original, no explanation was forthcoming to account for the whereabouts of the original Form.
357. Regulation 87(3) obligates the 2nd respondent to tally and complete Form 34C and to sign and date the
forms and make available a copy to any candidate or chief agent present. This regulation presupposes
that the Chairman retains the original. The court is mindful that the 2nd respondent was required to
avail the original Form 34C for purposes of access and to this extent the 2nd respondent did not.
358. Secondly, turning to the Forms 34B, the court notes that whereas the registrar received 291 forms
representing 290 Constituencies and the diaspora, it was explained that the results relating to prisons
were collated alongside those of their respective Counties as the prisons fall within Constituencies
where they are located. This was also noted by the Registrar of this court in her report.
359. The court notes further that from the report on Forms 34B, the Registrar outrightly made an
observation that some of the forms were photocopies, carbon copies and not signed. And out of the
291 forms, 56 did not have the watermark feature while 31 did not bear the serial numbers. A further
5 were not signed at all and 2 were only stamped by the returning ocers but not signed. In addition,
a further 32 Forms were not signed by agents. The above incidences are singled out since they are
incidences where the accountability and transparency of the forms are in question.
360. The Court also notes that in her adavit, Immaculate Kassait, a Director of the 1st respondent
deponed as follows:
Security Features Of Statutory Forms
214. That I am aware that the Commission developed standards for its electoral
goods prior to their procurement. The standards included specic security
features for each ballot paper and statutory form in order to prevent
duplication, misuse, piracy, fraud, counterfeiting and to improve controls. All
the ballot papers and statutory forms used in the August 8, 2017 election
contained these security features.
215. That some of the security features employed on the result declaration Forms
34A and 34B used in the August 8, 2017 election include:
a. Guilloche patterns against which all background colors on

the various results declaration forms have been printed. These
patterns are non – reproducible geometric patterns generated
by a special security software used for currency designs and are
generated as lines in vector format and cannot be scanned and
reproduced.
b. Anti – copy patterns; when the results declaration forms are

photocopied, hidden texts appear on the copy produced thus
distinguishing the original from the reproduced copy. Thus, a
photocopy would be distinguishable from an original form.
c. Watermarks; when the results declaration forms are viewed

against normal light or at an angle, a pattern or text incorporated
in the form can be seen.
d. Micro text; the results declaration forms have text characters

printed in very small font size which appear like a line to the
naked eye and are veriable only under a magnied glass.
e. Tapered serialization; this means serial numbering. Each of

the result declaration forms has a unique serial number to
ensure monitoring and control of the distribution of forMs
Furthermore, this serialization cannot be done by regular
mechanical impact devices.
f. Invisible UV printing; each result declaration form bears invisible

logos which may only be seen under a UV light. This feature
renders the forms almost impossible to counterfeit.
g. Polling station data personalization; In addition to having the

candidates‘ names, the forms 34A are personalized with the
details of the polling station‘s name and code, ward name and
code, constituency name and code and the county name and
code. This curbs the misuse of forms at dierent stations and
minimizes manual entry of information by ocials at the polling
stations.
h. Self – carbonating element; Forms 34A bear this aspect thereby
restricting manual entry of data on the form 34A to only once
and consequently enhancing accuracy and veriability of the
results.
i. Barcodes; The Forms 34B and Form 34C are printed with
barcodes which identify the tallying center by showing the
county codes and constituency codes, therefore ensuring quick
identication and verication of results.
216. That security features were also incorporated in the ballot papers used in the
8th August 2017 election all in an eort to ensure that the elections were
free and fair. For example, each ballot paper included dierent colour coding
of the background of each ballot paper for the six (6) elections. Each ballot
paper when examined visually contained a dierent colour. Specically the
commission used dierent background colors for each election to wit:-
a. Presidential-Plain white.
b. Member of National Assembly-Green colour.
c. Senator ballot paper-Yellow colour.
d. Member of County Assembly-Brown colour.
e. County woman member of national assembly-Purple colour.
f. Governor-Sky Blue Colour.
217. That in addition to the colour coding, similarly as in the statutory declaration
forms, each ballot paper incorporated a guilloche pattern, generic watermark,
anti – copy feature, embossment, UV sensitive security, tapered serialization
and tapered UV serialization to prevent duplication, misuse, piracy, fraud,
counterfeiting and to improve controls.
218. That the security features incorporated on the results declaration forms and
the ballot papers would enable the commission detect a counterfeit statutory
form or ballot paper and discharge its constitutional mandate of conducting
secure and veriable elections.
219. That in addition to incorporating the security features, the Commission went
a step further to instruct that all ballot papers need be stamped before they
are issued to a registered voter to cast his/her vote. This was an extra measure
initiated by the Commission with a view to ensure that the electoral process
was secure. However, the absence of a stamp does not by itself speak to the
authenticity of or invalidate the ballot paper.
220. That I conrm that all the Form 34A‘s received by the Commission at the
National Tally Center had all the above mentioned security features.
361. The above categorical statement diers completely with the abundance of caution submission by Mr
Muite SC and the not in the law‘ argument by the IEBC.
362. In the above context, we now turn to examine the applicable statutory provisions in this regard.
As pointed out by the petitioners, there is a reasonable expectation that all the forms ought to be
in a standard form and format; and though there is no specic provision requiring the forms to
have watermarks and serial numbers as security features, there is no plausible explanation for this
discrepancy more so when Immaculate Kassait deponed that all forms had those features.
363. There is another set of discrepancies relating to 32 Forms not being signed by agents, 103 forms where
the hand over‘ section had not been lled and 287 where the take over‘ section had not been lled.
364. Regulation 87(1)(b) of Elections (General) Regulations, 2012 as read with section 39(1A)(i) of the
Elections Act deals with Forms 34B in the following terms:
87(1) The constituency returning ocer shall, as soon as practicable-
(a) …
(b) deliver to the National tallying centre all the Form 34B from the respective polling
stations and the summary collation forMs
365. The schedule provides for a sample of the format of the Form 34B. As is evident from the schedule,
the Hand Over‘ section is lled when the Forms 34A are submitted to the Constituency returning
ocer whereas the Taking Over‘ section is lled when the Chairperson receives the Forms 34A. Indeed
Regulation 82(1) requires the presiding ocer to physically ferry the actual results to the Constituency
returning ocer. Further, Regulation 87(1)(b) requires the Constituency returning ocer to deliver to
the National Tallying Centre all the Forms 34A from the respective polling stations and the summary
collation forMs Regulation 87(3)(a) goes on to provide that, upon the receipt of Form 34A from the
Constituency returning ocer, the Chairperson of the Commission shall verify the results against
Forms 34A and 34B received from the Constituency returning ocer.
366. How then can the 1st and 2nd respondent deny the receipt of these prescribed forms" In any case,
during the hearing of the scrutiny application, Counsel for the 1st respondent submitted that the
Commission was in possession of all the original Forms 34A and 34B and went ahead to suggest that,
it was willing to release the same forms for inspection. We note that, during the scrutiny exercise that
was subsequently carried out, the Commission produced majority of those original forMs
367. It is clear that the purpose of including the requirement for indicating the number of forms received
by various ocers was to ensure accountability and transparency. It is therefore unfortunate that, out
of the random sample of 4,299 Forms 34A examined, a total of 189 Forms had not been lled in the
hand-over section, whereas 287 forms had not been lled in the take-over section. Such kind of scenario
raises the question as to the kind of verication done, if at all, by the Chairperson of the Commission.
368. As for Forms 34A, the sampled 4,299 forms reveal that 481 of them were carbon copies, 269 were not
stamped while 257 of the carbon copies were not stamped. 11 forms had no water mark while 46 of the
photocopies were not signed. 58 forms were not stamped. Considering the sample size, it is apparent
that the discrepancies were widespread. Did these discrepancies aect the integrity of the elections"
ii. The impact of the irregularities on the integrity of the election

369. Counsel for the respondents urged the court to dismiss the petition, as this would preserve the will
of the people who turned out in large numbers to vote for their preferred candidates. Our attention
in that regard was drawn to the provisions of article 38 of the Constitution, which is the embodiment
of the political rights of the citizen. It was variously submitted that elections are about numbers and
that they are about who gets the largest number of votes. Such irregularities as complained of by
the petitioners, counsel submitted, could not in themselves overturn the sovereign will of the people.
Further, if the quantitative discrepancies are so negligible (in this case, allegedly slightly over 20,000
votes), they should not aect the election; for in the words of one of the Prof PLO Lumumba, counsel
for the 2nd respondent, of small things, the law has no remedy.
370. On the other hand, counsel for the petitioners urged the court to look at the elections as a whole,
as a process rather than an event. To look at, not just the numbers, but the entire conduct of the
election. Mr Mwangi, counsel for the petitioners, went as far as to submit that elections are not a
political process, but a legal one. That the court should concentrate on examining the legal process in
the conduct of elections, as opposed to the political process.
371. It is our view however, that elections, are all these things. None of the factors highlighted by the
parties can be viewed in isolation. For by doing so, we run the risk of cannibalizing a sovereign process.
Elections are the surest way through which the people express their sovereignty. Our Constitution is
founded upon the immutable principle of the sovereign will of the people. The fact that, it is the
people, and they alone, in whom all power resides; be it moral, political, or legal. And so they exercise
such power, either directly, or through the representatives whom they democratically elect in free, fair,
transparent, and credible elections. Therefore, whether it be about numbers, whether it be about laws,
whether it be about processes, an election must at the end of the day, be a true reection of the will of
the people, as decreed by the Constitution, through its hallowed principles of transparency, credibility,
veriability, accountability, accuracy and eciency.
372. It is in this spirit, that one must read article 38 of the Constitution, for it provides inter alia, that every
citizen is free to make political choices, which include the right to free, fair, and regular elections, based
on universal surage and the free expression of the will of the electors…. This mother principle must be
read and applied together with articles 81 and 86 of the Constitution, for to read article 38 in a vacuum
and disregard other enabling principles, laws and practices attendant to elections, is to nurture a mirage,
an illusion of free will, hence a still-born democracy. Of such an enterprise, this court must be wary.
373. It is also against this background that we consider the impact of the irregularities that characterized
the presidential election. At the outset, we must re-emphasize the fact that not every irregularity, not
every infraction of the law is enough to nullify an election. Were it to be so, there would hardly be
any election in this Country, if not the world, that would withstand judicial scrutiny. The correct
approach therefore, is for a court of law, to not only determine whether, the election was characterized
by irregularities, but whether, those irregularities were of such a nature, or such a magnitude, as to have
either aected the result of the election, or to have so negatively impacted the integrity of the election,
that no reasonable tribunal would uphold it.
374. In view of the interpretation of section 83 of the Elections Act that we have rendered, this inquiry about
the eect of electoral irregularities and other malpractices, becomes only necessary where an election
court has concluded that the non-compliance with the law relating to that election, did not oend the
principles laid down in the Constitution or in that law. But even where a court has concluded that the
election was not conducted in accordance with the principles laid down in the Constitution and the
applicable electoral laws, it is good judicial practice for the court to still inquire into the potential eect
of any irregularities that may have been noted upon an election. This helps to put the agencies charged
with the responsibility of conducting elections on notice.
375. In the impugned presidential election, one of the most glaring irregularities that came to the fore was
the deployment by the 1st respondent, of prescribed forms that either lacked or had dierent security
features. The 1st respondent had submitted by way of adavit and in open court that out of abundant
caution, it had embedded into the prescribed Forms, such impenetrable security features that it was
nigh impossible for anyone to tamper with them. The court was also reminded that this was done,
despite it being not a requirement by the law.
376. However, the scrutiny ordered and conducted by the court, brought to the fore, momentous
disclosures. What is this court for example, to make of the fact that of the 290 Forms 34B that were
used to declare the nal results, 56 of them had no security features" Where had the security features,
touted by the 1st respondent, disappeared to" Could these critical documents be still considered
genuine" If not, then could they have been forgeries introduced into the vote tabulation process" If
so, with what impact to the numbers" If they were forgeries, who introduced them into the system"
If they were genuine, why were they dierent from the others" We were disturbed by the fact that
after an investment of tax payers money running into billions of shillings for the printing of election
materials, the court would be left to ask itself basic fundamental questions regarding the security of
voter tabulation forms.
377. Form 34C, which was the instrument in which the nal result was recorded and declared to the public,
was itself not free from doubts of authenticity. This Form, as crucial as it was, bore neither a watermark,
nor serial number. It was instead certied as being a true copy of the original. Of the 4,229 Forms 34A
that were scrutinized, many were not stamped, yet others, were unsigned by the presiding ocers, and
still many more were photocopies. 5 of the Forms 34B were not signed by the returning ocers. Why
would a returning ocer, or for that matter a presiding ocer, fail or neglect to append his signature to
a document whose contents, he/she has generated" Isn‘t the appending of a signature to a form bearing
the tabulated results, the last solemn act of assurance to the voter by such ocer, that he stands by the
numbers on that form"
378. Where do all these inexplicable irregularities, that go to the very heart of electoral integrity, leave this
election" It is true that where the quantitative dierence in numbers is negligible, the court, as we
were urged, should not disturb an election. But what if the numbers are themselves a product, not
of the expression of the free and sovereign will of the people, but of the many unanswered questions
with which we are faced" In such a critical process as the election of the President, isn‘t quality just
as important as quantity" In the face of all these troubling questions, would this court, even in the
absence of a nding of violations of the Constitution and the law, have condence to lend legitimacy
to this election" Would an election observer, having given a clean bill of health to this election on the
basis of what he or she saw on the voting day, stand by his or her verdict when confronted with these
imponderables" It is to the Kenyan voter, that man or woman who wakes up at 3 a.m on voting day,
carrying with him or her the promise of the Constitution, to brave the vicissitudes of nature in order
to cast his/her vote, that we must now leave Judgment.
379. In concluding this aspect of the petition, it is our nding that the illegalities and irregularities
committed by the 1st respondent were of such a substantial nature that no court properly applying
its mind to the evidence and the law as well as the administrative arrangements put in place by IEBC
can, in good conscience, declare that they do not matter, and that the will of the people was expressed
nonetheless. We have shown in this judgment that our electoral law was amended to ensure that
in substance and form, the electoral process and results are simple, yet accurate and veriable. The
presidential election of August 8, 2017, did not meet that simple test and we are unable to validate it,
the results notwithstanding.
iv What Consequential Declarations, Orders and Reliefs Should this Court Grant, if Any"
380. In the petition, the petitioners sought the following Orders;
(a) Immediately upon the ling of the petition, the 1st respondent do avail all the material
including electronic documents, devices and equipment for the presidential election within
48 hours;
of the 1st respondent in respect of the presidential election within 48 hours;
c. A specic order for scrutiny of the rejected and spoilt votes;
d. A declaration that the rejected and spoilt votes count toward the total votes cast and in the
computation of the nal tally of the Presidential Election;
e. An order for scrutiny and audit of all the returns of the presidential election including but not
limited to Forms 34A, 34B and 34C;
f. An order for scrutiny and audit of the system and technology used by the 1st respondent in
the presidential election including but not limited to the KIEMS Kits, the Server(s); website/
portal;
g. A declaration that the non-compliance, irregularities and improprieties in the presidential

election were substantial and signicant that they aected the result thereof;
h. A declaration that all the votes aected by each and all the irregularities are invalid and should
be struck o the from the nal tally and computation of the presidential election;
i. A declaration that the presidential election held on August 8, 2017 was not conducted in
accordance with the Constitution and the applicable law rendering the declared result invalid,
null and void;
j. A declaration that the 3rd respondent was not validly declared as the president elect and that
the declaration is invalid, null and void;
k. An order directing the 1st respondent to organize and conduct a fresh presidential election in
strict conformity with the Constitution and the Elections Act;
l. A declaration that each and all of the respondents jointly and severally committed election
irregularities;
m. Costs of the petition; and
n. Any other orders that the honourable court may deem just and t to grant;
381. Noting the prayers sought in this petition, this court has the mandate, to invalidate a presidential
election under article 140(3) of the Constitution as read with section 83 of the Elections Act, inter alia,
for reasons that there has been non-compliance with the principles in articles 10, 38, 81 and 86 of the
Constitution as well as in the electoral laws. One of the clear reliefs in article 140(3) is that should a
presidential election be invalidated, then a fresh election‘ shall be held within 60 days of this court‘s
decision in that regard. Parties at the hearing of the petition did not address us on the issue, however,
and so we do not deem it t in this Judgment to delve into an interpretation of that term. We also
note that the term fresh election‘ was addressed in the 2013 Raila Odinga case and is the subject of an
application by the 1st interested party within this petition. The application has been xed for hearing
on September 21, 2017 and the court will deal with it on its merits. We now return to the specic
prayers in the petition.
382. Without belabouring the point, prayers (a), (b) (c) (e) and (f) have been spent by fact of the ruling of
this court delivered on August 28, 2017. And whereas a scrutiny of rejected and spoilt votes as was
sought in prayer (c) was not specically done, we have elsewhere above substantively addressed the legal
regime on that issue and we do not need to repeat ourselves. However for clarity, and in addressing
prayer (d), as we have already stated, it is our rm nding that the decision in the 2013 Raila Odinga
case on rejected and spoilt votes remains good law and we see no reason to depart from it. Prayer (d)
is therefore disallowed.
383. Prayer (g) has been addressed in the analysis and determination of Issues Nos (ii) and (iii) and it is our
nding therefore that non-compliance with the constitutional and legal principles in inter alia Articles
10, 38, 81 and 86 of the Constitution and the Elections Act coupled with the irregularities and illegalities
cited above, aected the process leading to the declaration of the 3rd respondent as President elect in
a very substantial and signicant manner that whatever the eventual results in terms of votes, the said
declaration was null and void and the election was rendered invalid. Prayer (g) is therefore allowed.
384. Regarding prayer (h), the evidence before us cannot lead to a certain and rm decision regarding the
specic number of votes aected by the irregularities and illegalities and it is our position that a concise
reading of Section 83 of the Elections Act would show that the results of the election need not be an
issue where the principles of the Constitution and electoral law have been violated in the manner that
we have shown above. Prayer (h) to the extent that it refers to votes to be struck o cannot therefore
be allowed.
385. Regarding prayer (i), we have shown beyond peradventure that the presidential election held on August
8, 2017 was not conducted in accordance with the Constitution and the applicable law rendering the
declared result invalid, null and void. In the circumstances, prayer (i) is allowed as prayed. Prayers (j)
and (k) are a consequence of the declaration in prayer (i) and are also allowed.
386. Regarding prayer (l), we have shown that IEBC did not conduct the August 8, 2017 presidential
election in conformity with the Constitution and electoral law. Irregularities and illegalities were also
committed in a manner inconsistent with the requirement that the electoral system ought to be
inter alia simple, veriable, ecient, accurate and accountable. Although the petitioners claimed that
various electoral oences were committed by the ocials of the 1st respondent (IEBC) no evidence
was placed before us to prove this allegation. What we saw in evidence, was a systemic institutional
problem and we were unable to nd specic nger prints of individuals who may have played a role
in commission of illegalities. We are therefore unable to impute any criminal intent or culpability on
either the 1st and 2nd respondent, or any other commissioner or member of the 1st respondent. We
are similarly unable to nd any evidence of misconduct on the part of the 3rd respondent. The prayer
is therefore disallowed.
387. On costs, we are aware that costs generally follow the event, but the present petition has brought to
the fore the need for IEBC to adhere strictly to its mandate and not to exhibit the casual attitude it did
in the conduct of the impugned election and in defence of this petition. It is a heavily public funded
constitutional organ and to burden Kenyans tax payers with litigation costs would be a grave matter
which we deem unnecessary in this petition. Let each party therefore bear its own costs.
J. Conclusion
389. In this judgment, we have settled the law as regards section 83 of the Elections Act, and its applicability
to a presidential election. We have shown that contrary to popular view, the results of an election in
terms of numbers can be overturned if a petitioner can prove that the election was not conducted in
compliance with the principles laid down in the Constitution and the applicable electoral law. Never
has the word 'or' been given such a powerful meaning. Why did we do that?
390. We did so because as Judges we have taken an oath (as advocates rst and as Judges later). In the two
oaths, the fundamental words are delity to the Constitution without fear or favour. the constitutional
principles that we have upheld in this judgment were embedded and became a critical part of our
electoral law. The Legislature in its wisdom chose the words in section 83 of the Elections Act and in
keeping to our oath, we cannot, to placate any side of the political divide, alter, amend, read into or in
any way aect the meaning to be attributed to that section.
391. As for the IEBC, all we are saying is that, the constitutional mandate placed upon it is a heavy yet,
noble one. In conducting the fresh election consequent upon our orders, and indeed in conducting
any future election, IEBC must do so in conformity with the Constitution, and the law. For, what is
the need of having a Constitution, if it is not respected?
392. Having taken note of Mr Nyamodi‘s submissions, which appeared to suggest that IEBC had put in
place a complimentary system for the transmission of results; a system that was neither simple nor
known to the petitioners, we hereby direct that in conducting the fresh election IEBC must put in
place a complementary system that accords with the provisions of section 44(A) of the Elections Act.
It goes without saying that such a system as held by the High Court, in the case of the National Super
Alliance (NASA) Kenya v The Independent Electoral and Boundaries Commission & 2 others,121 only
comes into play when technology fails.
393. In the 2013 Raila Odinga case, this court stated that
"it should not be for the court to determine who comes to occupy the Presidential oce;
save that this court, as the ultimate judicial forum, entrusted under the Supreme Court Act,
2011 (Act No 7 of 2011) with the obligation to assert the supremacy of the Constitution
and the sovereignty of the people of Kenya [S 3(a)] must safeguard the electoral process and
ensure that individuals accede to power in the presidential oce, only in compliance with
the law regarding elections.
We reiterate those words in this petition and for as long as the Constitution of Kenya has the provisions
granting this court the mandate to overturn a presidential election in appropriate circumstances, it will
do so because the people of Kenya in the preamble to the Constitution adopted, enacted and gave unto
themselves the Constitution for themselves and future generations.
394. It is also our view that the greatness of a nation lies not in the might of its armies important as that is,
not in the largeness of its economy, important as that is also. The greatness of a nation lies in its delity
to the Constitution and strict adherence to the rule of law, and above all, the fear of God. The Rule
of law ensures that society is governed on the basis of rules and not the might of force. It provides a
framework for orderly and objective relationships between citizens in a country. In the Kenyan context,
this is underpinned by the Constitution.
395. And as Soli J Sorabjee, a former Attorney General of India once wrote, the rule of law
"is the heritage of all mankind"
121
National Super Alliance (NASA) Kenya v The Independent Electoral and Boundaries Commission & 2 others, Petition 328 of 2017;
[2017] eKLR.
and
"a salutary reminder that wherever law ends, tyranny begins."122
Cast the rule of law to the dogs, Lutisone Salevao once observed and government becomes a
euphemistic government of men… He adds:
"History has shown (sadly, I might add) that even the best rulers have fallen prey to the cruel
desires of naked power, and that reliance on the goodwill of politicians is often a risky act
of good faith."123
The moment we ignore our Constitution the Kenyans fought for decades, we lose it.
396. We further note that elections world over are competitive features.124 Presidents in many parts of
the world, and especially in Africa, wield a lot of power.125 The inuence that comes with the oce
makes its very attractive.‘126 That inuence cascades down through all elective positions to the lowest.
Candidates and political parties often do anything to be elected. Besides the candidates, the electorate
themselves, hoping for an improved standard of living, get equally agitated.127 All these factors make
elections at every level extremely high-pressure events.‘128
397. If they are mismanaged or candidates do not respect the rule of law; if the average citizen, political
parties and even candidates themselves do not perceive them as free and fair, elections can, and have led
to instability in some countries. Examples of such an eventuality abound. However, we do not need
to look far for examples. As we have stated, the awed presidential elections in Kenya in December
2007 led to post-election skirmishes that left over 1,000 people dead, about 50,000 others displaced
and drove the country to the brink of precipice not to mention the economic crisis that was thereby
wrought.
398. In the circumstances, and in answer to the respondents‘ harp on numbers, we can do no better than
quote the words of Justice Thakar of the Indian Court of Appeal in the case of Ponnala Lakshmaiah
v Kommuri Pratap Reddy & others,129 in which he observed:
"There is no denying the fact that the election of a successful candidate is not lightly to be
interfered with by the courts. The courts generally lean in favour of the returned candidates
and place the onus of proof on the person challenging the end result of an electoral contest.
That approach is more in the nature of a rule of practice than a rule of law and should not be
unduly stretched beyond a limit. We say so because while it is important to respect a popular
122
Soli J Sorabjee,'Rule of Law; A Moral Imperative For South Asia and the World,' Soli Sorabjee Lecture, Brandeis University
Massachusetts, April 14, 2010 at page 2. Available at www.brandeis.edu/programs/southasianstudies/pdfs/rule_of_law_full_text.pdf.
123
Lutisone Salevao, 'Rule of Law, Legitimate Givernance and Development in the Pacific'(ANU Press, 2005)page 2.
124
Independent Review Commission Report on the General Elections Held in Kneya on December 2007, Chapater III (Kriegler Report) at 32.
125
Edwin Odhiambo Apuya, 'Can African States Conduct Free and Fair Elections?' Vol 8 Issued (Spring, 2010) Northwestern Journal of
International Human Rights, p 123.
126
Ibid
127
Edwin Odhiambo Apuya, 'Consequences of a Flawed Presidential Election', Legal Studies Vol 29, Issue 1, (March 2009) pp 127-158.
128
Above Note 1.
129
Ponnala Lakshmaiah v Kommuri Pratap Reddy & others, Civil Appeal 4993 of 2012 arising out of SLP (C) No 20013 of 2010.
verdict and the courts ought to be slow in upsetting the same, it is equally important to
maintain the purity of the election process.
An election which is vitiated by reason of corrupt practices, illegalities and irregularities……
cannot obviously be recognized and respected as the decision of the majority of the
electorate. The courts are, therefore, duty bound to examine the allegations whenever the
same are raised within the framework of the statute without being unduly hyper-technical
in its approach & without being oblivious of the ground realities. Experience has shown
that the electoral process is, despite several safeguards taken by the Statutory Authorities
concerned, often vitiated by use of means, factors and considerations that are specically
forbidden by the statute.
399. What of the argument that this court should not subvert the will of the people" This court is one of
those to whom that sovereign power has been delegated under article 1(3)(c) of the same Constitution.
All its powers including that of invalidating a presidential election is not, self-given nor forcefully taken,
but is donated by the people of Kenya. To dishonestly exercise that delegated power and to close our
eyes to constitutional violations would be a dereliction of duty and we refuse to accept the invitation
to do so however popular the invitation may seem. Therefore, however burdensome, let the majesty of
the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our
rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from
the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to
those, who bear the responsibility of leadership, let it be a constant irritant.
400. Have we in executing our mandate lowered the threshold for proof in presidential elections" Have we
made it easy to overturn the popular will of the people" We do not think so. No election is perfect
and technology is not perfect either. However, where there is a context in which the two Houses of
Parliament jointly prepare a technological roadmap for conduct of elections and insert a clear and
simple technological process in section 39(1C) of the Elections Act, with the sole aim of ensuring a
veriable transmission and declaration of results system, how can this court close its eyes to an obvious
near total negation of that transparent system"
401. In keeping with our pronouncement regarding the burden and standard of proof in election petitions,
we are therefore satised that the petitioners have discharged the legal burden of proof as to squarely
shift it to the 1st and 2nd respondent. We are also of the rm view that having so shifted, the burden
has not in turn been discharged by the 1st and 2nd respondent as to raise substantial doubt with regard
to the petitioners‘ case.
402. For the above reasons, let this Judgment then be read in its proper context; the electoral system in Kenya
today was designed to be simple and veriable. Between August 8, 2017 and August 11, 2017, it cannot
be said to have been so. The petition before us was however simple and to the point. It was obvious
to us, that IEBC misunderstood it, hence its jumbled- up responses and submissions. Our judgment
is also simple, and in our view clear and understandable. It ought to lead IEBC to a soul-searching and
to go back to the drawing board. If not, this court, whenever called upon to adjudicate on a similar
dispute will reach the same decision if the anomalies remain the same, irrespective of who the aspirants
may be. Consistency and delity to the Constitution is a non-wavering commitment this court makes.
403. One other peripheral but important matter requires our attention; the timeframe for hearing and
determining a presidential election petition in Kenya. The court is able to bear all manner of criticisms
but one would be extremely unfair; alleged inability to deliver on time. Where is that time" Between the
decision in the 2013 Raila Odinga case and the present petition, it was a matter of agreement across
Kenya that 14 days is not enough for parties and the court to fully deliver on their respective mandates
not because they cannot (in fact they all have) but because there may be the need to conduct exercises
such as a recount of votes or scrutiny which require substantial amounts of time. Yet the Legislature
ignored pleas to rethink the timeframe. It is time they did so. The reasons for doing so are obvious and
need no extrapolation here.
404. In concluding, we must express our profound gratitude to all counsel who appeared before us, for their
submissions that assisted us in reaching the present decision.
K. Final Orders
405. By a majority of four (with JB Ojwang and NS Ndungu, SCJJ dissenting), we make the following nal
orders:
a. A declaration is hereby issued that the Presidential Election held on August 8, 2017 was not
conducted in accordance with the Constitution and the applicable law rendering the declared
result invalid, null and void;
b. A declaration is hereby issued that the irregularities and illegalities in the Presidential election of
August 8, 2017 were substantial and signicant that they aected the integrity of the election,
the results notwithstanding.
c. A declaration is hereby issued that the 3rd respondent was not validly declared as the President
elect and that the declaration is invalid, null and void;
d. An order is hereby issued directing the 1st respondent to organize and conduct a fresh
Presidential Election in strict conformity with the Constitution and the applicable election
laws within 60 days of the determination of September 1, 2017 under article 140(3) of the
Constitution.
e. Regarding costs, each party shall bear its own costs.
THE Dissenting Judgment of Justice JB Ojwang, SCJ
A. Background
1. So proximate to the moment of delivery of the Supreme Court‘s decision in this pivotal case, did I learn
that I fell on the minority side. By the Constitution, the timeline for hearing and determination was
below a fortnight, and so, full versions of the Judgment had to come later. My summarized dissent,
thus, grasped only the compelling elements of the case. Today, I have the opportunity to set out my
opinion in detail.
2. The question before the court was whether the Presidential election, conducted under one and
the same electoral process with ve other sets of election (for Senate; National Assembly; County
Governors; Women‘s Representatives; and County Assemblies), had been so compromised by
operational irregularity and illegality, as to compellingly attract Orders of annulment.
3. I learnt that the majority on the Bench had come to the unreserved resolution that the Presidential
election was a nullity, and that the electorate must return to the polls. Such a position was thus
summarized:
(i) As to whether the 2017 Presidential Election was conducted in accordance with the principles
laid down in the Constitution and the law relating to elections, upon considering inter alia
articles, 10, 38, 81 and 86 of the Constitution, as well as sections 39(1C), 44, 44A and 83 of the
Elections Act, the decision of the court is that the 1st Respondent failed, neglected or refused to
conduct the Presidential Election in a manner consistent with the dictates of the Constitution
and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.
(ii) As to whether there were irregularities and illegalities committed in the conduct of the 2017
Presidential Election, the court was satised that the 1st Respondent committed irregularities
and illegalities inter alia, in the transmission of results, particulars and the substance of which
will be given in the detailed and reasoned Judgment of the court. The court however found no
evidence of misconduct on the part of the 3rd Respondent.
(iii) As to whether the irregularities and illegalities aected the integrity of the election, the court
was satised that they did and thereby impugning the integrity of the entire Presidential
Election.
4. Having taken such standpoints, the majority proceeded to strike down the Presidential- election
outcome, ordering as follows:
(i) a declaration is hereby issued that the Presidential Election held on August 8, 2017 was not
(ii) A declaration is hereby issued that the 3rd respondent was not validly declared as the President
(iii) An order is hereby issued directing the 1st respondent to organize and conduct a fresh
Presidential Election in strict conformity with the Constitution and the applicable election laws
within 60 days of this determination under article 140(3) of the Constitution.
5. Thus, vital issues turning upon the democratic principle, issues of the terms and essence of the
Constitution, of the statute law, and of the judicial mandate in the interpretation and crystallization
of functional dimensions of the legal process, had been so cursorily dispatched – maybe in answer to
policy objects, or to political persuasions, or to other general, social calls. For me, as an experienced
lawyer and Judge, but more particularly, as a dedicated legal scholar, such an approach to contentious
matters did short shrift to the rm and principled, normative conguration of the law and the legal
process – elements which alone, would temper the motions of the social and political order, and ensure
that the mechanisms of governance remain attuned to the ideals of civilized process.
6. I will, in this Judgment, examine the foregoing dimensions of law with greater focus, after adverting
to the pertinent issues and evidence in the whole case.
B. Main Cause and Prelude
a. Prelude
7. The petitioners were the Presidential and Deputy-Presidential candidates of the National Super
Alliance [NASA] coalition of parties, and were running on the Orange Democratic Movement Party
[ODM] and the Wiper Democratic Movement Party tickets, respectively.
8. The 1st respondent is the Independent Electoral and Boundaries Commission [IEBC], an
independent agency established under article 88, as read with articles 248 and 249 of the Constitution
of Kenya, and the Independent Electoral and Boundaries Commission Act, 2011 (Act No 9 of 2011) [the
IEBC Act]. The 1st respondent bears the mandate of conducting and/or supervising referenda and
elections for any elective body or oce established under the Constitution, as well as any other elections
provided for under the Elections Act, 2011 (Act No 24 of 2011).
9. The 2nd respondent is the chairperson of the 1st respondent – and bears the mandate under Article
138(10) of the Constitution, to declare the outcome of the Presidential election, and to deliver written
notication of the same to the Chief Justice and to the incumbent President.
The 3rd respondent is the incumbent President, who was the candidate of the Jubilee Party, and who
was declared the winner in the elections, on August 11, 2017.
10. The petitioners are aggrieved with the mode of conduct of the Presidential election of August 8, 2017.
They contend that the said election was conducted, administered and managed improperly by the 1st
respondent, and that such mismanagement was deliberate and systematic, and having the eect that
there was failure of compliance with the governing principles prescribed under articles 1, 2, 4, 10, 38,
81, 82, 86, 88, 138, 140, 163 and 249 of the Constitution; with the Elections Act; with the Regulations
made thereunder; with the Electoral Code of Conduct; and with other relevant provisions of the law.
The petitioners call for the invalidation of the 2nd respondent‘s declaration of the 3rd respondent as
the duly elected candidate.
11. The prelude to the main cause is marked by a set of preliminary applications. These, and the court‘s
determinations, may be enumerated in summary form:
i. an application by the petitioners dated August 25, 2017 – seeking an order for the 1st
respondent to give the petitioners direct access to data and information; this elicited the order
that the 1st respondent do grant the petitioners, as well as the 3rd respondent, a read-only
access‘, with copying if necessary, for certain items of data; the court also ordered its Registrar
to give supervised access to certied copies of original voting-record Forms 34A and 34B,
to the petitioners and 3rd respondent; the Registrar being required to le a report on the
exercise by August 29, 2017 at 5.00 pm.; parties to make submissions thereupon; the court also
designated an information and communication technology (ICT) ocer from its sta, as well
as independent ICT experts – to oversee the required access to the dissemination technology
applied during the election;
ii. an application by the 3rd respondent, dated August 25, 2017 and seeking to strike out from
court record such documents as were not served out timeously; this was refused by the court,
on the premise that, in the interests of justice to all parties, its inherent jurisdiction favoured
retaining the documents and annexures in question; and, to safeguard the applicant‘s right to
fair hearing, the court directed that the documents and annexures in question be served upon
the 3rd respondent;
iii. an application by the petitioners, dated August 26, 2017, seeking to strike out documents led
by the 1st, 2nd and 3rd respondents, which had not been served upon counsel for the petitioners:
this was dismissed, on grounds that if granted, it would terminate the entire case for the 1st,
2nd and 3rd respondents at this preliminary stage – and this would derogate from the interests
of justice;
iv an application by 1st respondent, dated August 26, 2017 and seeking orders to expunge from
the record documents led out of time, which had the eect of raising a fresh cause of action,
apart from carrying additional evidence: this was disallowed, on the basis that the question
related to an application already before the court;
v an application dated August 21, 2017 by Information Communication Technology

Association of Kenya for joinder as amicus curiae: this was dismissed, on the basis that it fell
short of the applicable standard for admission;
vi. an application dated 21st August, 2017 by Mr Ekuru Aukot, one of the Presidential election
candidates, seeking joinder as interested party: this was allowed, on the basis that the applicant
had a personal stake in the outcome of the petition;
vii. an application dated August 23, 2017 by Mr Michael Wainaina Mwaura, who had been a
Presidential election candidate, seeking joinder in some capacity – respondent, amicus curiae,
or interested party: this being allowed (for interested party), on the basis that he had a personal
stake in the outcome of the petition;
viii. an application by Mr Aluoch Polo Aluochier, dated August 23, 2017, seeking joinder as
interested party: this being disallowed, on the ground that the applicant failed to meet the
requisite legal threshold;
ix. an application by Mr Benjamin Barasa Wafula dated August 24, 2017 seeking joinder as
interested party: this being disallowed, for failure to meet threshold requirements;
x. an application by learned counsel, Mr Charles Kanjama, dated August 25, 2017 seeking joinder
as amicus curiae: this being disallowed for failure to meet threshold standards;
xi. an application by the Law Society of Kenya dated August 25, 2017, seeking joinder as amicus
curiae: this being allowed, on the basis that the legal threshold was satised;
xii. an application by the Attorney-General dated August 25, 2017 seeking joinder as amicus
curiae: this was allowed.
b. Main Cause: Issues and Contentions

12. It was the petitioners‘ contention that, during the Presidential election, being part of the General
Election of August 8, 2017, certain management improprieties came to pass, which aected the
registration of voters, the votes cast, the vote count.
13. One of the allegations related to the category of votes described as rejected votes, said to have
constituted 2.6% of the total votes cast. The issue being raised in this regard, came alongside a
contention that an earlier decision of the Supreme Court, in Raila Odinga v Independent Electoral
and Boundaries Commission and others, Sup Ct Petition No 5 of 2013, should be reversed: insofar the
Court had in that case held that spoilt votes are not to be taken into account, in computing the 50%
+1 vote-strength threshold for determining the winner in a Presidential election.
14. Such a claim is founded upon a desired legal yardstick, rather than on the prescribed, and operative
law. The petitioners contended that the Supreme Court in the earlier case, had improperly arrived
at its legal threshold, because it had been inuenced by a dissenting opinion in a comparative
case-citation noted by this Supreme Court – which by Kenya‘s Constitution (article 163(7)), is the
ultimate judicial authority, and [a]ll courts, other than the Supreme Court, are bound by its decisions.
The petitioners were invoking the case from Seychelles, Popular Democratic Movement v Electoral
Commission, Constitutional Case No16 of 2011; they were urging that the majority stand in that case
should determine this Supreme Court‘s position as regards spoilt votes in the electoral process: and
that in that context, there was an impropriety in the Presidential-election vote-count, following the
election of August 8, 2017.
15. The petitioners contended that the conduct of the Presidential election of 8th August, 2017 had
contravened the principle of free and fair election under article 81(e) of the Constitution as read with
section 39 of the Elections Act, and the applicable regulations.
16. The burden of the petitioners‘ case lies on the process of relaying and transmitting voting records from
polling stations to constituency tallying centres and the National Tallying Centre: they questioned
this process as falling short of standards on simplicity, accuracy, veriability, security, accountability,
transparency, promptitude. They contended that such shortcomings had compromised the principle
of free and fair elections in terms of Article 81(e) (iv) and (v) of the Constitution. The petitioners
attributed impropriety to the electoral process on a plurality of grounds, such as that:
i. the data and information recorded in Forms 34A at the individual polling stations had not
been accurately and transparently entered into the electronic KIEMS kits, at the individual
polling stations;
ii. there had been non-compliance with the requirement that KIEMS kits be accompanied
by an electronic image of the prescribed forms, as these were transmitted to the National
Tallying Centre; and this was in contravention of Regulation 87(3) of the Elections (General)
Regulations;
iii. the 1st respondent had pre-determined the results of the Presidential election, and was therefore
not impartial, neutral and accountable as required by Article 81(e) (v) of the Constitution;
iv the declared results were not veried in more than 10,000 polling stations, and the data entered
in the electronic kits was not consistent with the information in the Forms 34A;
v the information in Forms 34A was not consistent with that in Forms 34B, and the gures were
not accurate and veriable;
vi. the computation and tabulation of the results in a signicant number of Forms 34B was not
accurate, veriable and internally consistent;
vii. the results, recorded in the 1st respondent‘s Forms 34B were materially dierent from those
relayed, and relayed again, as at the time of ling on its website;
viii. the 1st respondent had espoused a false narrative and national psyche, as the stage for stealing
the election on behalf of the 3rd respondent – by allowing the electronic media and the news
channels to relay and continue relaying its results-data, which lacked a legal or factual basis; and
ix. at the time of declaration of election result, the 1st respondent was not in possession of Forms
34B, and did not publicly display the same for verication.
17. The petitioners contended that the Presidential election was not impartial, neutral, ecient, accurate
and accountable as required under Article 81(e)(v) of the Constitution, as read with Sections 39, 44
and 44A of the Elections Act and Regulations made thereunder, and Section 25 of the IEBC Act; and
that there were instances in which vote-count had been distorted, manipulated, or inated in favour
of the 3rd respondent. The petitioners asserted that it was impossible to determine who had won the
Presidential election, or whether the threshold for winning the election was met.
18. The petitioners contended that there had been a deliberate failure in operational transparency, and
that the respondent had disregarded the decision of the Court of Appeal in Independent Electoral and
Boundaries Commission v Maina Kiai, Civ Appeal No 105 of 2017, by failing to electronically collate,
tally and transmit accurate results, and by declaring results by county, rather than by polling stations.
19. The petitioners contended that the 1st respondent had allowed the transmission and display of
unveried provisional results, contrary to law; that the 1st respondent had also posted contradictory
results in Forms 34A and 34B; and that there were internal contradictions in Forms 34A. They
contended that the 1st respondent had declared nal results on August 11, 2017 even before receiving
results from all polling stations, and had allowed more than 14,000 defective forms from polling
stations – with the outcome of distorting more than 7 million votes. The petitioners contended that
the 1st respondent had colluded with the 3rd respondent to eject their legitimate agents from various
polling stations in Central and Rift Valley regions. On the basis of such allegations, the petitioners
contended that the 1st respondent had abdicated its responsibility for ensuring a transparent and an
impartial voting process, apart from corrupting the process of transmission of results.
20. The petitioners contended that the 1st respondent had failed to adhere to the Constitution, rule of
law, court orders and decisions – and that such a condition rendered the processes of the Presidential
election, the transmission of results, and the nal outcome, a nullity, as it lacked integrity, fairness and
transparency.
21. The petitioners contended that there had been a violation of article 86 of the Constitution, and that
the votes cast in a signicant number of polling stations were not counted, tabulated, and accurately
collated as required under article 86(b) and (c) of the Constitution, as read with the Elections Act.
They contended that the results recorded in Forms 34A diered from the results shown in the
1st respondent‘s Forms 34B and displayed in the 1st respondent‘s website; and they asserted that
the 1st respondent‘s Forms 34B were inaccurate, bearing statistical manipulation to favour the 3rd
respondent.
22. The petitioners contended that the 1st respondent had acted contrary to the terms of articles 38, 81
and 86 of the Constitution as read with sections 39(1c) and 44 of the Elections Act and the regulations
thereunder, as well as section 25 of the IEBC Act.
23. The petitioners contended that, contrary to regulation 7(1)(c) of the Elections (General) Regulations,
the 1st respondent had fraudulently established secret and ungazetted polling stations, wherefrom
vote-count results were added to the nal tally, thereby undermining the integrity of the Presidential
election.
24. The petitioners contended that a signicant number of Forms 34B had been executed by persons
not gazetted as Returning Ocers, and not accredited as such by the 1st respondent – and that such
election results as were carried in such forms were invalid. They contended that all returns submitted
without IEBC‘s ocial stamp, or which did not bear the signatures and particulars of Returning
Ocers and agents, were invalid.
25. The petitioners averred that the returns used in a material number of polling stations were not in the
prescribed Forms 34A and 34B, contrary to Regulations 79(2) (a) and 87(1)(a), and that the Forms 34B
bore fatal irregularities aecting 14,078 polling stations out of the established 25,000. They contended
that a number of the forms and returns were not signed; that some did not show the name of the
Returning Ocer; that some did not bear the IEBC stamp; that some Forms 34A and 34B did not
bear the signatures of candidates‘ agents, nor the reason for lack of signature; that some were signed by
the same presiding ocer serving at dierent polling stations.
26. The petitioners contended that the 1st respondent had violated their rights under article 35(2) of
the Constitution, by putting up inaccurate information which misled the general public. They also
asserted that the Presidential election was compromised by intimidation and improper inuence,
or corruption, contrary to article 81(e)(ii) of the Constitution as read with the Elections Act, and
regulations 3 and 6 of the Electoral Code of Conduct.
27. On the basis of the foregoing contentions, the petitioners formulated certain specic issues for the
court‘s determination:
i. whether the Presidential election was conducted in accordance with the Constitution;
ii. whether the Presidential election was conducted in accordance with the written law;
iii. whether the 1st respondent‘s non-compliance with the Constitution and/or the law, aected
the result of the Presidential election;
iv whether the 1st respondent‘s non-compliance with the Constitution and/or the law aected the
validity of the result of the Presidential election;
v whether the non-compliance, irregularities and improprieties aected the validity of the results
of the Presidential election;
vi. whether the non-compliance, irregularities and improprieties aected the result of the
Presidential election;
vii. whether the exclusion of 2.6% of the total votes cast, as spoilt votes, substantially aects and/
or invalidates the count and tally of the Presidential- election votes;
viii. whether the total number of veried, rejected votes should be considered in ascertaining the
attainment by any candidate, of the constitutional threshold;
ix. whether the 3rd respondent was validly declared as President-elect;
x. whether the said 3rd respondent committed election irregularities;
xi. what are the appropriate orders to be issued by the court.
c. What is the Evidence?

28. The various contentions and averments, as a matter of vital judicial methodology, are to be lighted up
by objective evidentiary account. I will now consider the scope of validation for the petitioners‘ cause,
coming forth by way of their main body of factual testimony.
29. The 1st petitioner, Mr Raila Amolo Odinga, tendered evidence by his adavit of August 18, 2017
which also represented the stand of the 2nd petitioner. He deponed that he had been a Presidential
election candidate, duly nominated by the NASA coalition.
30. The 1st petitioner deposed that the 1st respondent, acting through presiding ocers, undertook
the vote-count which culminated in the declaration of the 3rd respondent as President on August
11, 2017, with 8,203,290 votes, as against the deponent with 6,762,224 votes. The deponent was
aggrieved with the declaration, as he believed the Presidential election to have entailed breaches of the
Constitution and the applicable laws – such breaches arising before polling day, as well as during the
processes of tallying and transmission of results.
31. The deponent stated his belief, that the Presidential election failed to meet the constitutionally-
prescribed terms that require free, fair, transparent, accountable, credible and/or veriable elections.
He deposed that the IEBC had deliberately and/or negligently compromised the security of the
integrated electoral management system (KIEMS), and thereby exposed it to unlawful interference by
third parties. He deponed that the collation, tallying, verication and transmission of the Presidential-
election results had been compromised by procedural aws and illegalities, upon such a scale as
substantially qualied the credibility of the declared result. He averred that the poll results as declared,
were substantially at variance with the actual results tallied and declared at the gazetted polling stations.
He deponed that the 3rd respondent, in concert with Cabinet Secretaries and others serving under the
charge of the 3rd respondent, had abused their positions, by bringing their inuence and pressure to
bear upon the potential voters.
32. The deponent averred that, while the 1st respondent had acted by virtue of Section 44 of the Elections
Act, and developed the Elections (Technology) Regulations, 2017, under which the KIEMS system had
been set up for the management of elections, the failings in the conduct of the Presidential elections
had now undermined the security of the electoral system, exposing it to third-party interference. He
deponed that the said electronic system had been misapplied, with the eect that the Presidential
election was substantially conducted by manual processes. As an instance in that regard, the deponent
averred that the 1st respondent acted contrary to law by failing to transmit electronically the vote-count
results from the polling stations and the constituencies – with the consequence that the transmission
process was now exposed to unlawful manipulation. He averred, in that context, that the consequential
delay in transmitting election results with the prescribed forms, gravely aected the credibility and
validity of the results.
33. The deponent averred that a review of the election results, in relation to the available Forms 34A and
34B, had shown substantial qualitative anomalies, such as put into question the credibility of the
Presidential election.
34. The deponent averred that the 3rd respondent was guilty of undue inuence, bribery, inducement
and intimidation in relation to the free exercise of elective preference by the voters. In this regard the
deponent averred that the 3rd respondent had, on 2nd August at Makueni, issued threats to those
chiefs who did not mount political campaigns in his favour; that Cabinet Secretaries had actively
campaigned for the 3rd respondent; that the 3rd respondent had taken decisions involving public
resource-deployment, in such a manner as to benet his political campaign.
35. Another deponent, Ms Oichoe, averred that she was a cyber security expert, and had observed and
followed the conduct of the August 8, 2017 General Election – in particular, the process of vote-
count results transmission. The process, as she averred, entailed six primary scenarios in respect of
which IEBC‘s operational systems and data base has to be tested. The rst of these is condentiality:
this requires that information should only be accessed by authorized persons; the condentiality
of sensitive information is to be secured. Secondly, integrity: information used should be accurate,
complete, protected from unauthorized modication – by authorized or unauthorized persons. Under
this scenario, it was the deponent‘s averment that non-authenticated results had entered the IEBC‘s
public portal – and so, this should raise questions as to the integrity of the data. The third element,
availability, required that data systems be available when required by persons authorized to use them –
and access thereto is to be in compliance with the terms of articles 35 and 47 of the Constitution, and
section 44(b) of the Elections Act as read with section 4 of the Access to Information Act, and regulation
15(4) of the Elections (Technology) Regulations, 2017. She deponed that during the August 8, 2017
General Election, the voters‘ register had not been made available on request, until the last moment
when an order of court had been made in aid of such access. The deponent averred that the next feature
of the data-base system was non-repudiation: an audit trial is to be maintained on activities occurring.
This ensures that should someone have access to the information or data-base, a footprint is left; and a
log should be maintained to facilitate tracing-back to source. It was her averment that it was emerging
from the petition, that entry had been made into the data-base, and a strange return made in place of
the statutory Form 34. She deposed that a strange book had been posted on the IEBC website, and
that such a situation calls for explanation. She averred that since the statutory form for transmitting
results is Form 34, the book posted in the website was strange in law. The fth website scenario, in the
deponent‘s averment, is authenticity: the information itself, as well as its source, is to be shown to be
genuine – this being attributable to section 44B of the Elections Act. The deponent averred that, on
the date of declaration of election results, only 29,000 Forms 34A were available, and the declaration
was made on the basis of forms of questionable authenticity. Her last, essential data-base feature was
privacy: Section 55A as read with Section 44B of the Elections Act contemplates privacy and security
of data; and so, the deponent averred, if it is proved that IEBC failed to secure its data and its public
portal, then it would be necessary to have an audit of all its systems.
36. Another deponent, Mr Koitamet Ole Kina, averred that he was a duly accredited agent of the NASA
coalition, in the General Election of August 8, 2017. He deposed that he had arrived at the IEBC co-
ordination base, the Bomas of Kenya, on the election date at 16.30 hrs, for the purpose of activating
his access card. Following some delay in activating the card, the deponent joined the company of
fellow agents, and they witnessed the streaming-in of election results, which commenced at 17.15
hrs. Thereafter, he averred, his team came to learn that it was not possible to verify the result-
announcements, as they came unaccompanied with hard copies of Forms 34A, or the soft copies
from the server. The NASA team, being concerned, approached IEBC Commissioners (Professor
Guliye and Ms Roselyn Akombe) and the CEO, Mr Ezra Chiloba, calling for Forms 34B as a basis of
verication. As this initiative proved ineectual, the deponent averred, the NASA agents demanded
a meeting with the Commission, and obtained yet another fruitless promise of access to Forms 34A:
these being received, with Forms 34B, only in limited numbers, on August 11, 2017.
37. The deponent recorded his opinion, regarding the unreliability of the supply of Forms 34A and 34B by
the IEBC, that this was evidence of a determination on the part of the Commission to declare results
that could not be veried as required by law. The deponent drew on the content of another adavit,
by Dr Oduwo, and averred that dilatory responses to the demands for the said forms, showed the 1st
respondent‘s announcements to have been misinformed, and/or based on information such as failed
the test of verication, accuracy, transparency and credibility.
38. Mr Moses Wamuru, the NASA Presidential candidate‘s chief agent and co-coordinator for Embu
County, deponed that he and his agent-colleagues had not only been harassed, but kept out of the
polling station by IEBC ocials and ocers of the Provincial Administration, for most of the election
day. He deponed that he had been forced by the Constituency Returning Ocer, to sign the election
declaration form, as a condition for being availed a copy of the election results.
39. Another deponent, Mr Godfrey Osotsi, for Amani National Congress (of the NASA coalition of
parties), averred that he was an ICT expert who had been an observer of the August election vote-
tallying. This deponent deposed not upon settled fact, but urged this Court to order a system-audit:
to trace transmissions so as to reveal the code used by IEBC for the more-than 40,000 polling stations;
for the purpose of identifying the IEBC ocers who used such codes to transmit election results; to
establish the time and place where such transmissions were originated; and to identify the person who
applied the special identier to eect results transmission.
40. The deponent also gave his opinion on matters of law: that under the Elections Act, election material‘
includes systems such as are contemplated under Section 17(1), and include the Kenya Integrated
Electoral Management System (KIEMS) – which incorporates voter registration, voter identication,
and the results-transmission system.
41. The deponent proceeds on that same line of averment: a declaration of results has to come in the wake
of a transmission in the right manner, as prescribed, before reaching the National Tallying Centre.
He rested his armations upon other deponents‘ statements in support of the petition: as at the
time of declaration of Presidential election results, only 29,000 Forms 34A had been received, and
their authenticity still stood to be ascertained; and, election results could only be declared when the
Commission was already in possession of all the Forms 34A and 34B.
42. The deponent averred that IEBC either lacked full control of its system, or had ceded such control to
some other authority.
43. Another adavit was sworn by Mr George Kegoro, the executive director of the Kenya Human Rights
Commission, a civil society agency committed to fostering and safeguarding human rights, democratic
values, human dignity and social justice. He deponed that his organization serves as secretariat for
an initiative known as Kura Yangu Sauti Yangu (KYSY), which is wholly devoted to the cause of fair
elections during Kenya‘s 2017 election cycle. He averred that KYSY had deployed some 500 agents
in all the 290 constituencies, to observe and monitor the electoral process: and KYSY had found
contradictions and anomalies in the election data emanating from IEBC, especially in relation to the
Presidential votes as reected on the IEBC website.
44. An agent of the NASA coalition, Ms Olga Karani, deponed that, concerns had been expressed by
members of the public, about anomalies and irregularities in the vote tallying process – such anxieties
also coming from the election candidates, as well as NASA agents. She averred that the prescribed
election forms were manually availed to the National Tallying Centre, though sometimes they were also
displayed on the IEBC website. It was her belief that it was impossible to verify the authenticity of such
forMs She deponed that, by the time of announcement of the election results, the Commission had
neither collated, nor availed any of the Forms 34B, nor had it responded to outstanding issues regarding
Forms 34A, or to the questions being raised about results posted on the website. She attributed lack of
transparency to the actions taken by the 1st respondent.
45. Another deponent, upon whose averments several of the petitioners‘ witnesses relied, was Dr Nyangasi
Oduwo. He deponed that on August 8, 2017 at 5.07 pm., some 10 minutes after the closure of the
polling stations, the 1st respondent started streaming results for the Presidential election. He averred
that such announcements of results had maintained a constant gap of 11% between the vote-count
for the 1st petitioner and the 3rd respondent – notwithstanding the random distribution of the
constituency-locations. His averment expressed suspicion also on the basis that, as he perceived it, in
numbers of polling stations within the central Kenya and Rift Valley regions, the petitioner‘s agents
were chased away from the stations, and replaced by imposters, and thereafter presiding ocers were
caused to record ctitious results in favour of the 3rd respondent.
46. Dr Oduwo averred that, upon being asked by the petitioner to examine 5000 Forms 34A, supplied by
presiding ocers to the 1st petitioner‘s agents across the country, and to compare these with Forms
34B supplied by the 1st respondent and Forms 34A posted on the 1st respondent‘s website, he found
discrepancies.
47. Dr Oduwo made averments embodying opinion in clear terMs He asserted that the 3rd respondent
and the Deputy-President, who were candidates in the Presidential election, were guilty of corruptly
inuencing voters in the run-up to the General Election of August 8, 2017. He averred that the
election was compromised by instances of undue inuence, inducement, bribery and intimidation.
The deponent, in a second adavit, avers that certain anomalies had compromised the said election,
instances being: forms marked with a rectangular, rather than an ocial, circular stamp; Returning
Ocers failing to sign Forms 34B, or recording their own names; lack of handing-over notes;
discrepancies in numbers of valid votes; unstamped forms; corrected gures noted on forms; agents
not signing statutory forms; discrepancies in vote-tally.
48. Discrepancy in vote-tally records was also the subject of averments by Mr Benson Wasonga, who
deponed that the IEBC‘s summation of valid votes was 15,179,717 – with the 1st petitioner having
6,821,505; the 3rd respondent having 8,222,862; and the total rejected votes being 477,195; as
compared to the IEBC portal showing as total votes cast, 15,180,381, 1st petitioner‘s vote as 6,821,877,
3rd respondent‘s vote as 8,223,163, and rejected votes as 403,495. These gures, it was deponed,
varied from the specic gures (Form 34C), that were issued at the time of declaration of the 3rd
respondent as the leading candidate: total valid votes, as 15,114,622; 1st petitioner‘s votes, as 6,762,224;
3rd respondent‘s votes, as 8,203,290; total rejected votes, as 81,685. The deponent deposed that the
actual variation in the rejected votes, as between the IEBC‘s summation of the results, and the display
on the portal, was 73,700 votes; and he averred that this dierential amounted to violation of the
electoral law, to the prejudice of Presidential candidates other than the declared winner.
49. The petitioners called two more witnesses, one of these being Mr Mohamed Noor Barre, from
Mandera County in the north of the country. He deponed that while he had been trained, and sworn
to serve as presiding ocer in the elections, the local IEBC oce had informed him on August 7, 2017
that he had been replaced by a dierent person. His averment was that the electoral process at his station
had been conducted by strangers‘ as presiding ocers.
50. It is the same with Mr Ibrahim Mohamud Ibrahim, also from Mandera, who deponed that although
he had been appointed, training and sworn-in as presiding ocer, he had been called to the local IEBC
oce on August 7, 2017 and informed that his place had been taken up by a dierent person. He
deponed that the elections which took place on the following day, had been conducted by strangers,
acting as presiding ocers.
C. The Other Side: Respondents‘ Answer
a. Introduction
51. Judicialism, the established framework for relieving the all so-frequent grievances, conicts, frays
and tensions in the social order, has evolved as a civilized tradition of durable rules and methods of
accommodation. Such methods have their objectivity and rationale, lodged within the discipline of
law, which, as will become evident in this Judgment, is the domain not of the most open-textured
manifestations, nor the most elementary political suasions – but of jurisprudence, as methodical
reasoning, of a normative and professional category.
52. The established judicial method, which rests on the singular dependability of the fact- base, and which
vindicates the principles of fairness, objectivity and legitimacy – is to entertain the account from the
other side; and thereafter, to weigh, check and balance the two streams of evidence, thereby arriving
at a valid and just result.
53. As I express this introductory perception, so as to shed more light on the instant matter, I admit my debt
to legal scholarship; with Andrew Goodman in his learned work, How Judges Decide Cases: Reading,
Writing and Analysing Judgments, 2nd Indian Reprint (New Delhi: Universal Law Publishing Co Pvt
Ltd, 2009), in which he observes (p 44):
However rareed and abstruse the legal argument before the [court], it must be anchored
on the facts of the case: while the judges will feel free to expound upon the most general
principles in order to provide guidance for the future, the actual decision…will turn on the
facts, even if the detail of the argument is quite remote from them [emphases supplied].
54. Such is a fundamental principle, invariably observed in the practice and application of law in this
country, as in other countries, the constitutional and judicial systems of which have beneted from the
integrity of the common law tradition. And such an approach is certain to lead to a fair, dependable
and plausible basis of judgment, as well as set a just and tenable reference-point for the future.
b. Issues and Contentions
55. It was the 1st and 2nd respondents‘ assertion that the 3rd respondent, in the Presidential election of
August 8, 2017 had garnered the largest number of votes, and had satised the constitutional threshold
prescribed in article 138(4) of the Constitution, apart from complying with the terms of the applicable
statute law. They denied the petitioners‘ claims of non- compliance with the terms of articles 1, 2,
4, 10, 38, 81, 82, 86, 88, 138, 140, 163 and 249 of the Constitution as well as other applicable laws,
asserting that all such claims of non- compliance were couched in bare generalities, and were devoid
of any factual basis.
56. The 1st and 2nd respondents stated that the conduct of the Presidential election had been attended with
an elaborate management system, guided by all relevant electoral laws, and safeguarded by denite
safety measures for assuring transparency, accountability and veriability, in terms of articles 81 and
86 of the Constitution.
57. The 1st and 2nd respondents stated that they had duly veried, and accurately tallied the election results
for all candidates, before declaring the outcome, in accordance with article 138(10) of the Constitution,
and duly taking into account the terms of the recent Court of Appeal decision in IEBC v Maina Kiai
and 4 others, Civ App No 105 of 2017 [which relates to vote tallying]. They denied the petitioners‘
claims, that they had conducted the electoral process in a manner that prejudiced the sovereign will
of the voters, and that they had only delivered preconceived and predetermined, computer-generated
leaders.
58. The 1st and 2nd respondents denied the petitioners‘ allegation, that the number of rejected votes in the
Presidential election had been as much as 2.6% of the total votes cast, stating that such votes, as declared
in Form 34C, constituted only 0.54% of the votes cast.
59. The 1st and 2nd respondents contested the petitioners‘ claim that the right principle to guide this
court, in respect of the treatment of rejected votes, should be that preferred by the Seychelles Supreme
Court, in Popular Democratic Movement v Electoral Commission, Const Case No 16 of 2011, rather
than this Court‘s established precedent in Raila Odinga v Independent Electoral and Boundary
Commission & others, Pet No 5 of 2013. The respondents‘ stand was that rejected votes had been rightly
excluded from the count of votes cast, by this court.
60. The respondents stated that the process of relay and transmission of results, from the polling stations to
the constituency tallying centre and the National Tallying Centre, had been simple, accurate, veriable,
secure, accountable, transparent and prompt.
61. The 1st and 2nd respondents stated that the Presidential election had been conducted in a manner
that was free, fair, and in accordance with the Constitution; a manner that gave fullment to the
sovereign will of the voters. The respondents urged that in these proceedings, two basic questions fell
for determination, namely:
(i) whether the 3rd respondent was validly elected and declared as President- elect by the 2nd
respondent;
(ii) what consequential declarations, orders and reliefs the court should grant.
They asked the court to nd, with regard to the two questions, that –
i. the respondents had not contravened the provisions of the Constitution, the Elections Act, or
any other statute;
ii. the presidential election was conducted in accordance with the Constitution and the Elections
Act, and all other relevant statutes, and a valid declaration of the outcome duly made;
iii. the 3rd respondent was validly elected as the President of the Republic of Kenya;
iv the people of Kenya exercised their sovereign power of the vote, and their decisions should be
respected;
v the petition lacks merit, and should be dismissed;
vi. the petitioners should bear the costs of the petition.
c. Evidentiary Statements
62. The 2nd respondent, in his adavit sworn on August 24, 2017 deponed that he had been the
Returning Ocer for the Presidential election of August 8, 2017. He averred that neither he nor the
1st respondent had any private stake in the election outcome, and that they had been neutral referees
– their sole mandate being to provide the electoral structure for the voters to exercise their sovereign
will, by electing leaders of their choice.
63. The deponent averred that, a tally of all the votes had shown Uhuru Kenyatta to have garnered
8,203,290 votes, followed by Raila Odinga, the 1st petitioner herein, who garnered 6,762,224 votes.
The declared results were expressed in Form 34C, which was itself abstracted from forms 34B,
forwarded to the National Tallying Centre from the constituency tallying centres, as well as the
diaspora vote-tallies.
64. The deponent averred that, in view of the election-management infrastructure that was in place, the
primary results-declaration forms (Forms 34A and 34B) were by no means compromised, in their
accuracy and overall integrity. These forms had been transmitted through the KIEMS electronic
system, in a scanned format, secured by non-replicable features. The security features, he averred,
included anti-photocopy and self-carbonated elements, up to a span subsuming six copies.
65. He deposed that the presiding ocers at the 40,883 polling stations were required to scan, and
electronically transmit the original Forms 34A to both the constituency tallying centres and the
National Tallying Centre. The constituency tallying centres for their part, were required to relay the
Forms 34B to the National Tallying Centre, for the purpose of tallying: and so, for the Presidential
election, the results could be veried by reconciling the gures in Forms 34A.
66. The deponent averred that, his dedicated task in the said electoral process was to provide policy
leadership, and strategic direction, to ensure that the Commission‘s infrastructure for election-
management, was accountable, ecient, systematic and methodical.
67. He deposed that, though aicted by challenges occasioned by a multiplicity of suits against the
Commission, it still ensured that the procurement of electoral materials, by the secretariat, was done in
a transparent and timely manner; and that other electoral processes, including supportive technological
systems, were deployed in a manner consistent with the constitutional and legal requirements of
simplicity, accuracy, veriability, security, transparency and accountability.
68. The deponent averred that, all due arrangements had been made by the Commission, in aid of the
electoral process of August 8, 2017 – noting in particular the following aspects:
i. voter education had been conducted throughout the country;
ii. sta training, for the management of elections, had been duly carried out;
iii. all the polling stations had been duly gazetted;
iv the register of voters had been duly audited and uploaded in the Commission‘s website
(https:www.iebc.or.ke/iebcreports), and hard copies printed and posted at conspicuous sites
at each polling station;
v mechanisms were put in place to facilitate the observation, monitoring and evaluation of the
elections, in compliance with the terms of Article 88(4) of the Constitution;
vi. the procurement and distribution of strategic and non-strategic election materials was duly
completed;
vii. as required by article 10 of the Constitution, the Commission had held many consultative
meetings with key stakeholders, including – quite signicantly – political parties: to update
them on the progress made on all fronts, in relation to the August 8, 2017 elections;
viii. the Commission had duly complied with the recent decision of the Court of Appeal in
the Maina Kiai Case, on the conditions attending the tasks of: vote-counting; tallying;
verication; and declaration of Presidential-election results at the constituency level, and at the
National Tallying Centre.
69. The deponent averred, in the light of the foregoing safeguard-measures taken, that, it was not true
as alleged by the petitioners and their witnesses, that the Commission presided over a shambolic
Presidential election, or that the entire electoral process was a failure, or that the election entailed
breaches of the Constitution and the applicable laws relating to vote- tallying, and to the transmission
of results.
70. The deponent averred that the Presidential election had met all the requirements of free and
fair elections, having been conducted by way of secret ballot; being free from violence, improper
inuence or corruption; having been administered in a dedicated process conducted exclusively by
the Commission; having been transparently conducted; and having been administered in an impartial
neutral, ecient, accurate and accountable manner.
71. The deponent, on the course of action which he took following the elections, signalled his authority
as emanating from article 138(10) of the Constitution: he is mandated, within seven days following
the election, to declare the result as set out in Form 34C, and to deliver written notice of the same
to both the Chief Justice and the Incumbent President. He averred that, throughout the electoral
cycle, he had discharged his mandate in perfect accord with the Constitution, the electoral laws, and the
applicable regulations. He averred that in the discharge of his obligations at election time, he had not
been inuenced by anyone, and had maintained the required standards of professionalism.
72. The deponent deposed that he had conducted and supervised the election in accordance with the terms
of article 81(e) of the Constitution, and that in this respect, several elements in his discharge of duty
stand out, namely:
i. every registered voter who participated in the General Election, had cast his or her vote by way
of secret ballot;
ii. polling stations were adequately secured by the police, to ensure that the electoral process was
free from violence, intimidation, improper inuence, or corruption;
iii. the election was independently conducted by the Commission;
iv candidates and observers, were allowed to have their appointed agents at the various polling
stations – to observe the voting process and to assure transparency;
v the said agents observed the closure of the voting process, and were involved in the counting
of votes at the various polling stations, to bear witness to manifestations of transparency,
impartiality, neutrality, eciency, accuracy and accountability in the voting and vote-count;
and
vi. the agents of the Presidential-election candidates were given access to the various vote-
recording forms, including Forms 34A and 34B – a further element in the 1st respondent‘s
transparency and accountability.
73. The deponent averred, as regards the transmission set-up during the electoral process, that the
Commission‘s sta managing the KIEMS gadgets, had been trained in good time, and the said gadgets
had been congured with the register of voters. He averred that the KIEMS system was designed to
allow for integration of the biometric voter registration, biometric voter identication, the electronic
transmission of election results, and the political party, and candidate registration systems. He deposed
that the said system had been successfully deployed on August 8, 2017, and that it had signicantly
improved eciency, eectiveness and accuracy in the operation of the electoral process.
74. The deponent averred that he was present at the National Tallying Centre between 8th and August
11, 2017, participating in the tallying and validation of Forms 34B that were being electronically
transmitted by the constituency returning ocers (and in this regard, he attached as evidence copies
of Forms 34B, marked WWC-3). Upon receipt of these forms, he deposed, he had collated the same,
and conrmed the consistency of the results, availing Forms 34B to the Presidential election candidates
through their agents, for verication and conrmation. The deponent, thereafter, used the said results
to tally and complete Form 34C, in compliance with section 39(3)(b) of the Elections Act.
75. The deponent makes specic averments on the vote tallies, as he received them on August 11, 2017; on
this occasion he received 290 Forms 34B from the constituencies, as well as the tally of diaspora votes:
and the Presidential election results were conrmed by the agents, the particulars thereof standing as
follows:
Name of Valid Votes Percentage of Votes No of Counties
Cast wherein Candidate
Candidate
had at least 25% of the
Votes Cast
John Ekuru 27,311 0.18% 0

Longoggy Aukot
Mohamed Abduba 38,093 0.25% 0

Dida
Shakhalaga Khwa 11,705 0.08% 0

Jirongo
Japheth Kavinga 16,482 0.11% 0

Kaluyu
Uhuru Kenyatta 8,203,290 54.27% 35
Michael Wainaina 13,257 0.09% 0
Joseph William 42,259 0.28% 0

Nthiga Nyaga
Raila Odinga 6,762,224 44.74% 29
On the basis of these results, the deponent avers, he acted in compliance with article 138(4) and (10)
of the Constitution, and publicly declared the Presidential election outcome on August 11, 2017.
76. The deponent averred that the Commission had found that, in a few of the results- declaration forms,
there were certain errors – but that these were inadvertent, minor errors which had no eect on the
vote-tally and outcome of the Presidential election. In support of the nding on the said errors, the
deponent tendered in evidence a document marked WWC-5, attended with the detailed adavit of
Ms Immaculate Kassait (1st respondent‘s Director of Voter Registration and Electoral Operations).
77. Mr Chebukati had specic averments to make in relation to certain depositions made on behalf of
the petitioners. He deponed, in relation to the statement by Mr Godfrey Osotsi, that, throughout
the electoral process, the Commission had engaged the petitioners as well as the 3rd respondent (in
person, and through their representatives), the public, and interested stakeholders – for the purpose
of adhering to best practices in electoral matters.
78. The deponent, in departure from the testimony of Mr Godfrey Osotsi, averred that the Commission
was already in possession of all Forms 34B, at the time of declaration of the Presidential election results:
and all the Forms 34B and 34C were availed to the candidates and their agents for verication, before
the declaration of results; and all Presidential election candidates were allowed to visit the National
Tallying Centre to verify the results, as from the commencement, up to the moment of declaration. He
averred that he personally chaired many consultative meetings with the petitioners‘ agents, whenever
any issues of concern had been raised, even though for unexplained cause, the petitioners‘ agents had
decided to depart from the National Tallying Centre, just prior to the declaration of results.
79. In response to the 1st petitioner‘s claim of procedural aws, illegalities and/or irregularities in the
collation, tallying, verication and transmission of Presidential election results, the deponent averred
that tallying as conducted by the Commission, was in compliance with articles 81(e) and 86 of the
Constitution as read with section 39 of the Elections Act; and he deponed that at every forum of results-
processing, the petitioners were allowed to have their agents, to conrm the tallying, the announcement
and declaration of results. He averred as well, that the electronic system of transmission of results was
secure, prompt, veriable and ecient. He deponent that all the results-declaration forms had been
subject to verication by the candidates‘ agents/representatives, and immediately thereafter, forwarded
to the National Tallying Centre. The deponent further averred that the 1st petitioner had deposed
that he had been given access to the Forms 34B through his agents: and thus the charge of lack of
transparency and accountability in the tallying process, was short on veracity.
80. The deponent denied the 1st petitioner‘s assertion that IEBC had condoned voter intimidation,
undue inuence, bribery and/or agrant electoral oences committed by the 3rd respondent. He
similarly denied the assertion by one of the 1st petitioner‘s witnesses, Dr Nyangasi Oduwo, that the 3rd
respondent had been declared to be the winner without a verication of all the requisite documents. He
averred that all the Presidential election candidates and their agents, or representatives, had been invited
to verify the results, before declaration. And he deponed that he did not announce the nal results
of the Presidential election until he had received and veried the Forms 34B from the constituency
tallying centres.
81. The deponent averred that on August 10, 2017 the Commission received a letter of the same date from
Mr Orengo, the petitioners‘ deputy chief agent, raising concerns about the Presidential election results;
and the Commission internally considered the issues raised, before communicating its position by a
letter of the same date (exh. WWC-6a and 6b). He averred that the declaration of Presidential election
results on August 11, 2017 was done in full compliance with the terms of the Constitution, contrary
to the averments of the 2nd petitioner.
82. The deponent averred that the petitioners‘ allegation that the Commission had failed to take steps
against the 3rd respondent for breach of the provisions of the Election Oences Act, Section 14, was
not true; for, on June 21, 2017 he had written to the Director of Public Prosecutions informing him
of the alleged breach, and calling for his action. The Director of Public Prosecutions had responded
by his letter of July 6, 2017 informing the deponent that he had directed the Director of Criminal
Investigations to take action as appropriate (exh. WWC-7).
83. Another adavit was sworn by the 1st respondent‘s Chief Executive Ocer, Mr Ezra Chiloba (August
24, 2017), who averred that the Commission had conducted the Presidential election on August 8,
2017 in accordance with the terms of the Constitution (articles 81, 83 and 86), the Elections Act, and
the applicable regulations.
84. Mr Chiloba testied that, despite the complex political and legal environment in the run-up to the
General election of August 8, 2017, the 1st respondent had managed to put in place an eective
infrastructure, with appropriate mechanisms, for the conduct of a free, fair and credible election. He
averred that the election was conducted in a transparent, open and accountable manner, and that the
process was peaceful and credible – just as was conrmed by both local and international observers.
(In this regard, he annexed as evidence a copy of the various observer reports – exh. EC-12).
85. The deponent averred that the tallying and transmission of election results took place at the polling
stations, where the vote-count was collated and declared at the constituency tallying centre, and at the
National Tallying Centre. Results thus processed and accounted for, the deponent averred, were in
every sense credible, and truly represented the will of the voters. He deposed that there had been no
compromise to, nor interference with the system for the transmission of results – before, during, or
after the declaration of the outcome of the Presidential election. He deponed that the collation, tallying
and transmission of the results were in accordance with the terms of the Constitution, the Elections Act,
and the appellate court‘s decision in the Maina Kiai case.
86. Referring to the documentary evidence on record, the deponent deposed that the election results as
declared, were substantially consistent with, and were a true reection of, the actual results tallied and
declared at duly-gazetted polling stations.
87. Responding to the assertions in the 1st petitioner‘s adavit, the deponent averred that the electoral
law had been recently updated, with the enactment of the Election Laws (Amendment) Act, 2017,
allowing a four-month period within which to procure and establish the Kenya Integrated Electoral
Management System (KIEMS); and that there was no basis for the allegation that this new electronic
system had been compromised through the practice of hacking, occasioning a distortion in the
Presidential-election vote tallies. He denied the 1st petitioner‘s assertion that the 1st respondent had
failed to put in place the requisite measures to assure the credibility of the KIEMS system, and averred
that the said system had served well in the identication of voters, and for results transmission. He
further deponed that the Commission‘s operations were not entirely dependent on KIEMS, as a
complementary mechanism was provided for by law, in the event of any breakdown in the electronic
mechanism.
88. The deponent denied the petitioner‘s assertion that the conduct of vote-tallying in the Presidential
election had not been in accordance with the terms of Article 86 of the Constitution. He deposed
that the election results had been transmitted from polling stations and constituency tallying centres,
as required by law. Denying the petitioners‘ statement that they were not supplied with Forms 34A
and 34B, the deponent averred that the petitioners had indeed been supplied with all Forms 34A and
34B available on the public portal; and that by their own letter of August 14, 2017 the petitioners
acknowledged being accorded access to all the requested forms. (The relevant correspondent in this
regard is marked EC-15).
89. To the petitioners‘ assertions that the Forms 34A and 34B had certain anomalies, such as brought into
question the credibility of the Presidential election, the deponent averred that the petitioners had not
disputed the results as declared, but only alleged unsubstantiated qualitative anomalies.
90. The deponent averred that all presiding ocers had been trained by the Commission to take the image
of Forms 34A, for transmission through KIEMS, though there were a number of instances in which
they chose to take images of other documents; and the consequence, in view of the fact that one of the
security features was the capturing of only one image for the six sets of elections, was that, it was the
test documents, rather than the Forms 34A, that ended up being transmitted. Upon noting this error,
the 1st respondent uploaded the Form 34A for the aected polling stations, on the public portal. Such
inadvertent transmission of wrong images, the deponent averred, did not aect the election results as
contained in Forms 34A. (He annexed a typical example of such error, and its rectication, as exh.
EC-18).
91. Responding to the petitioners‘ adavit sworn by Ms Apprielle Oichoe, the deponent averred that the
assertions made under the rubric, The Travesty that was the Electoral Process in Kenya 2017, did not
give a true account. The report in question had not, in the rst place, been dated or signed, nor was
its author or source indicated. The deponent averred that, quite to the contrary, the 1st respondent‘s
tallying and transmission system were functional and credible in all respects.
92. In response to the adavit of Mr Benson Wasonga, the deponent averred that the election results from
each polling station were contained in Forms 34A; and the results- declaration for the Presidential
election was made on the basis of results contained in Forms 34B from 290 constituencies and the
diaspora. He averred that the total number of rejected ballots as declared in Forms 34C, was 81,685,
and not 477,195 as alleged. He averred that Mr Wasonga had misconstrued the statistics published on
the public-display mode of KIEMS – which was not the result within the terms of the law. He deponed
that the cause of the variance between the actual number of rejected ballots and the gure shown on
the public website, was but on account of human error.
93. In response to the statements made on behalf of the petitioners by Mr George Kegoro, the deponent,
rstly, adopted the detail, tenor and eect of the 1st respondent‘s depositions by Ms Immaculate
Kassait. Secondly, the deponent averred that the statistics electronically displayed did not, as such,
constitute the results of the Presidential election: the nal result of the Presidential election is veriable
from an inspection of Forms 34A and 34B.
94. The deponent denied Mr Kegoro‘s statement that the IEBC‘s portal showed varying levels of votes cast
for the six dierent elective oces featuring in the General elections of August 8, 2017. He averred that
Mr Kegoro‘s statement was unrelated to the fundamentals of the petition, as it lacked a foundation
in the pleadings and the primary depositions of the petitioners – hence verging upon an attempt to
litigate a substantial Presidential petition by the guise of supporting adavit.
95. Responding to the adavit of Ms Olga Karani, for the petitioners, the deponent adopted the averments
made by Ms Immaculate Kassait and Mr James Muhati, and deposed that all agents at the National
Tallying Centre had been given access to the Forms 34A and 34B, and an opportunity to verify the
results, before declaration.
96. The deponent averred that the Presidential election of August 8, 2017 was conducted in accordance
with the Constitution and the electoral laws, and that the process was free, fair and credible. Among
the elements of credibility in the said election, he enumerated the following:
i. a substantial increase was realized in the number of voters – from 14.4. million in 2013 to 19.6
million in 2017, being some 78% of the eligible voters;
ii. an audit of the register had been conducted, before the date of voting;
iii. the register had been opened for verication of biometric data, by members of the public (May
10, 2017 – June 9, 2017);
iv a time-table had been published for political-party primaries – Gazette Notice of March 17,
2017;
v resolving of disputes from the nomination process for candidates;
vi. registering of over 14,500 candidates to participate in the 2017 General Election;
vii. gazettement of 40,883 polling stations and 338 tallying centres across the country, including
the prisons and the diaspora; and
viii. gazettement of returning ocers;
ix. acquiring of an integrated electoral management system for voter registration, voter
identication, candidates‘ registration, results transmission;
x. recruitment, training and deployment of over 360,000 election ocials across the country;
xi. continuous voter education programmes undertaken across the country, using dierent
strategies and platforms; and
xii. attracting over 15,000 individual observers; 105 international observer institutions; 254 local
institutions; more than 7000 journalists from over 30 local and international media houses
accredited to participate in the General Election.
97. The next deponent, James Muhati who holds the oce of Director in charge of Information and
Communication Technology at IEBC, made depositions bearing upon the statements by the 1st
petitioner, and by Ms Apprielle Oichoe and Mr Godfrey Osotsi. He averred that the Commissions
had taken up suggestions made in the Kriegler Report which was formulated in the wake of the
violent General Election of 2007, and had deployed certain technological mechanisms to support
the management of the electoral process – these being the Biometric Voter Registration (BVR); the
Electronic Voter Identication Device (EVID); the Candidate Nomination System; and the Result
Transmission System (RTS). When the ne electronic system was rst utilized in 2013, the deponent
averred, it was found to have certain imperfections; and it became necessary to amend section 44 of
the Elections Act, mandating IEBC to establish an integrated electronic system: this would facilitate
the conduct of biometric voter registration; electronic voter identication; and electronic results
transmission - that is, the Kenya Integrated Electoral Management System (KIEMS). This new system,
the deponent averred, was successfully employed during the August 8, 2017 General Election: and it
enabled IEBC to properly verify the biometric data during the May 10, 2017 – June 9, 2017 verication
exercise, as required by law; it also enabled the proper verication of voters on polling day; and it
enabled the due transmission of election results from polling station to constituency, and to the
National Tallying Centre.
98. The deponent averred that he was aware of the terms of the Constitution and the statutory and
regulatory framework, within which the electoral process had been conducted: and in this context, he
cited articles 81 and 86 of the Constitution as read with section 4(m) of the IEBC Act, which require the
voting set-up to be simple, accurate, veriable, secure, accountable and transparent. He deposed that
the KIEMS had been established with the approval of the Elections Technology Advisory Committee
(ETAC), under the terms of section 44(8) of the Elections Act, and with the participation of relevant
agencies and institutions, including political parties. (He annexed the supporting minutes – exh. JM
– 1).
99. On the role of ICT in the General Election of August 8, 2017, the deponent averred that a technological
process had been used in voter identication, and the transmission of results; and that the transmission
component in KIEMS had enabled the Commission to relay the Presidential election results and
statistics from the polling stations to the constituency tallying centres and to the National Tallying
Centre. During the transmission of election results through KIEMS, the presiding ocer would
complete Form 34A as required by law, and then input on the KIEMS the results-statistics captured on
Form 34A; the presiding ocer would then take the image of Form 34A, and, before sending the data,
he or she would rst show the entries made to the agents of the candidates and of the political parties,
for conrmation. (He annexed as evidence, copies of the directions issued to the presiding ocers, the
training manual, and a transmission ow-chart (JM-5A; JM-5B and JM 5C, respectively)).
100. It was the deponent‘s evidence that the petitioners‘ allegations that the relay and transmission was not
simple, accurate, veriable, secure, accountable, transparent, open and prompt, and that there had
been a contravention of the terms of article 81 (e)(iv) and (v) of the Constitution, did not represent the
truth – especially as no evidence had been adduced to support the claims.
101. On the question of the security and veriability of the electronic system, and in relation to the
allegation that there had been some compromise to the KIEMS system by unauthorized third parties,
the deponent averred that such claims have no relation to the true position, noting also that they are
not supported by evidence. He averred that the Commission had engaged a competent support-team
of experts, who subsequently partnered with internationally recognized and accredited institutions to
provide the best information-security system. (He annexed copies of certication and accreditation
documents from the providers – exh. JM-8A; JM-8B; JM-8C; JM-8D).
102. The deponent gave testimony on the complementary system in the transmission of election results,
for compliance with the terms of article 38 of the Constitution. He averred that Regulation 83 of
the Elections (General) Regulations, 2012 provided for the complementary system of transmission of
election results, and that the complementary mechanism involves the physical delivery of Forms 34A
by presiding ocers to the Returning Ocers, in the respective constituencies.
103. IEBC‘s Director of Voter Registration and Electoral Operations, Ms Immaculate Kassait, averred that,
contrary to the negative impression given by some of the petitioners‘ witnesses on early transmissions
of election results for some stations, such stations had only a few voters, sometimes numbering between
one and 10 – and counting these would take only a short time; she gave examples in this regard: Boyani
Primary School in Matuga Constituency; Arabrow in Wajir South Constituency; Ya Algana in North
Horr Constituency; Lowangina Primary School in Tigania East Constituency.
104. The deponent denied the veracity of the claim by some of the petitioners‘ deponents, that there had
been, in the transmission of election results, a constant 11% dierence in vote-strength between the 1st
petitioner and the 3rd respondent. She displayed a table in her adavit, based on a 30-minute interval
analysis of transmitted election-results data; and this showed the vote dierence to range in percentage
between 9.095% to 25.573%.
105. The deponent denied the allegation in Dr Nyangasi‘s adavit, that the 1st respondent had chased
away from polling stations the agents of the 1st petitioner, in central Kenya and in the Rift Valley. She
gave examples of polling stations in central Kenya in which, indeed, the petitioner‘s agents had duly
executed Forms 34A.
106. The deponent admitted a case of an erroneous data entry in a station, where the petitioner had been
credited with 2 votes instead of 561 votes, indicating that the circumstances in which such error
occurred were explained in the 1st respondent‘s adavit by Mr John Ole Taiswa; she deponed that a
similar explanation of error was also set out in the adavit of Ms Rebecca Abwaku.
107. The deponent took on specic instances in which the depositions made for the petitioner, and which
attributed misrepresentation of vote-count, were based on untrue perceptions of fact: for instance,
that a partial Form 34B was uploaded in respect of Karachuonyo Constituency; that in Kilome
Constituency the original form 34B reected 38,269 votes, while that uploaded in IEBC‘s portal
showed 33,757 votes; that in Igembe South, the summation of total votes in Forms 34A for the 1st
petitioner was 41,834, yet by Forms 34B in the Commission‘s portal, his total votes were 43,209; that
the Forms 34A in respect of St. John‘s Primary School Polling Station indicated the total number of
valid votes cast as 468, against the entry on Form 34B which showed 467; that there was a variance
between the Forms 34B keyed-in on the KIEMS kit and that projected at the National Tallying Centre
for Morrison Primary School Polling Station; that there were any discrepancies in Forms 34B for
Embakasi South Constituency, and Forms 34A for Jobenpha Community School; that there were any
discrepancies in Forms 34B and 34A in respect of Kiru Primary School Polling Station.
108. The deponent, while disagreeing with most of the claims made by the petitioners, admitted the
occurrence of certain errors, for instance: there were discrepancies in Form 34B in Bomet Central
Constituency – to the extent that at Bomet Primary School, the form did not show any rejected votes,
while there was one rejected vote; in the case of Kapkoross Primary School in Turbo Constituency,
there was a computation error – though the total vote cast in respect of each candidate was correctly
tallied; there was a computation error in the case of Dagoretti North Constituency, with the total valid
votes being shown as 104,789, rather than 105,840; in the case of Naivasha Constituency, there were
arithmetic errors in the completion of the forms for several polling stations; in the case of Kiangai
Primary School in Ndia Constituency, Form 34A indicated the 3rd respondent‘s votes as 461, while
Form 34B showed these as 467; there was a data-entry error in the case of Gem Constituency – with a
variance between the total votes tallied, and the total valid votes.
109. The 3rd respondent made depositions to the eect that he had at all material times been the President
of the Republic of Kenya, as well as the nominated Presidential-election candidate for the Jubilee Party,
following the earlier General Election of 4th March, 2013; and he had been declared as President-Elect
by the 1st respondent, upon the conclusion of the General Election of August 8, 2017.
110. Regarding the integrity of the 1st respondent in its conduct of the 2017 General Election, the 3rd
respondent deponed that the IEBC was a reconstituted team, drawing its origin from the endeavours
of the NASA coalition‘s predecessor, CORD, which in May 2016, had held nationwide rallies
culminating in the removal from oce of the former Commissioners, and the amendment of the
Elections Act. The said protests led to a bipartisan Parliamentary process, which crystallized a new
legal framework, attended with the resignation from oce of the then Commissioners, and the
appointment of the current Commissioners, who managed the elections of August 8, 2017.
111. The deponent averred that the Presidential Election of August 8, 2017 had been preceded by
considerable litigation on electoral matters, in the superior Courts, promoted by the CORD or NASA
coalition – notable instances being: IEBC v Maina Kiai and others [2017] eKLR; NASA v IEBC and
others, Civ Appeal No 258 of 2017; Republic v IEBC ex parte Gladwell Otieno, High Court Jud Rev
No 447 of 2017.
112. It was the 3rd respondent‘s perception that the Commission had complied with the law, in the conduct
of the General Election of August 8, 2017 – especially with directions issued by the Courts in the
various election-related cases. This perception is founded upon a certain set of facts, as follows:
i. election materials, including biometric voter verication kits, and ballot papers, were timeously
conveyed to all polling stations in the country at large;
ii. the biometric voter-verication kits were successfully applied in all polling stations – and where
they malfunctioned, prompt action was taken to repair them, or to operationalize in their place
the prescribed complementary identication mechanism;
iii. the voting process came up against no impediment, throughout the country; and voting closed
on time, in the vast majority of polling stations; where voting began late, voters were allowed
commensurate additional time to vote, before closure;
iv candidates and/or their agents, and political-party agents, were allowed in, at the polling
stations, to monitor the process of voting, tallying, recording and transmission of results;
v presiding ocers at each polling station not only submitted Form 34A in electronic form in the
presence of the candidates and/or their agents, but submitted also the scanned copy of Form
34A to the constituency tallying centre – before the hard copies were taken to the constituency
tallying centre; and wherever there was a failure to transmit simultaneously the results data and
the scanned image of the Form 34A at a polling station, the same was not in violation of any
law, there being no statutory obligation in that regard;
vi. other than minimal human errors, which are to be expected, the data entered in the KIEMS,
particularly with regard to votes received by the individual Presidential-election candidates,
was accurate;
vii. nonetheless, the results electronically transmitted through KIEMS were only provisional, and
did not constitute the nal gures which were announced by the 2nd respondent; it is notable in
this regard that the 1st respondent had made it clear that in the event of any dierence between
the alpha-numeric results sent though KIEMS and the results reected on the Forms 34A, the
results on the Forms 34A would prevail;
viii. at each constituency tallying centre, the Forms 34A received from the polling stations were
collated by the returning ocer, and a declaration in the Form 34B, reecting the same, was
signed by the returning ocer and the candidates or their agents, verifying that the Forms 34A
received were a true reection of the vote-count recorded by the presiding ocers at the polling
stations;
ix. the signed Forms 34B were thereafter scanned and transmitted to the National Tallying Centre
electronically;
x. all transmitted Forms 34A were held accessible to all parties; and all Forms 34B were printed
and availed to the Presidential-election agents at the National Tallying Centre;
xi. the Presidential election results were declared by the 2nd respondent on the basis of the results
declared in forms 34A at the polling stations, and tallied in Forms 34B at the constituency
tallying centres.
113. The 3rd respondent deponed that the petitioners had failed to set out the particulars of the non-
compliance with the Constitution and the law which they alleged, by the 1st respondent; hence their
charge had rested merely upon conjecture and speculation.
114. As to the petitioners‘ contention that there were discrepancies between the Forms 34A and 34B bearing
the election results, the 3rd respondent averred that no instances of such variance had been shown; and
in his perception, even assuming such allegations were true, the discrepancies would stand as no more
than clerical errors, such as would aect the election result, in view of the large dierence separating
the 3rd respondent and the 1st petitioner in vote-strength.
115. The deponent averred that it would not have been possible for the 1st respondent to manipulate or
distort the votes cast and counted in favour of the 3rd respondent, considering the rigorous statutory
procedures observed by the 1st respondent; and moreover, the nal results of the Presidential election
had been duly veried by the political parties and the individual candidates, through their agents – the
eect being that such election results were a true reection of the will of the voters.
116. In the 3rd respondent‘s perception, the 1st respondent, in the conduct of the General Election of
August 8, 2017, had all along acted in a lawful and transparent manner, as it undertook the tasks of
various stages of the election – including early preparations; voting process; vote counting at the polling
stations; tallying at the constituency and the national tallying centres; and the transmission of results
at all levels. The mode of conduct of the election, in the 3rd respondent‘s perception, was ecient,
accountable, accurate and credible.
117. The 3rd respondent averred that he had garnered, at the Presidential election of August 8, 2017,
a substantial vote, represented in the gure of 1,401,286 above the number obtained by the 1st
petitioner. Such a margin, in the deponent‘s view, emphatically demonstrated the sovereign will of the
Kenyan people, which merits safeguard by the process of the law.
118. The 3rd respondent denied the petitioners‘ contention, that he had contravened the law and the
declared principles for the conduct of free and fair election, through the medium of intimidation,
coercion, or improper inuence on voters. He averred that such allegations have been made without
any evidentiary basis. He deponed that the Presidential election had been conducted peacefully, and
in accordance with the law, as well as best international practice.
119. The 3rd respondent deponed that he had diculty in responding to accusations emanating from
the petitioners and their witnesses which were imprecise and lacked particulars. While he found Dr
Nyangasi‘s depositions to be in the category of such generalized statements, he none-the-less went on
to deny that he corruptly inuenced voters in the run-up to the election of August 8, 2017; he denied
that he had used threats to get the support of local chiefs in Makueni; he denied being aware of any
Cabinet Secretaries who abused their oces and accorded him electoral support, and invoked several
other adavits in support of his averments – those by Dr Kibicho, Mr Wakahiu, Mr Chirchir, and
Ms Guchu.
120. Mr Chirchir, who had been the chief Presidential agent during the 2017 elections, deponed that the
said elections had been free, fair, accountable, credible and veriable. He deponed that the majority-
vote cast for the 3rd respondent was a natural reection of the general national voting orientation,
which gave the 3rd respondent‘s Jubilee Party the greatest number of votes for the ve other categories
of elective posts also lled through the same General Election of August 8, 2017.
121. Denying the averments in Mr Kegoro‘s adavit for the petitioners, the deponent averred that the
processes of voting, collating and tallying of votes, and declaration of results, had been conducted in
compliance with the provisions of the Constitution and electoral laws, and that the Presidential election
results announced by the 2nd respondent on August 11, 2017 were accurate, and in compliance with
the prescribed standards.
122. The deponent averred that, at the time of declaration of the Presidential election outcome, the 1st
respondent‘s online portal had not yet transmitted all the results; and these results were being retrieved
from Forms 34A arriving from polling stations, which results had already been transmitted to the
constituency level; and the inconsistency in the data displayed was on account of Forms 34A, 34B and
34C that had not yet been transmitted on the online portal. He deponed that, as at August 21, 2017
at 8.14 am, the transmission rate was 99.99%; and this meant that the reported valid votes in the gure
of 15,180,381 at the portal, did not include all valid votes from all the 40,883 polling stations of the
country.
123. It was Mr Chirchir‘s averment that the violence witnessed several days following the declaration of
results by the 2nd respondent, was occasioned by the demands by the petitioners that they be declared
President-elect and Deputy President-elect on the basis that the petitioners were already in possession
of what they believed to be the genuine results, secured from the 1st respondent‘s servers. Such a crisis,
the deponent averred, had been deepened by a press conference in which the petitioners urged their
supporters to reject such vote-count results as would later be announced, on the basis of a collation
of results in Form 34C.
124. Mr Bryan Gichana Omwenga, a technology advisor employed by the Jubilee Party, averred in his
adavit that it was not true as deposed by Mr Ole Kina, that Forms 34A had been used to declare the
Presidential election results; rather, he deponed, it is the Forms 34B that provide the basis for declaring
such results.
125. Mr Omwenga deponed that the process of electronically transmitting Presidential election results had
not, in all cases, functioned without a hitch: sometimes, the scanned image would fail to load, or would
delay in loading, especially in those parts of the country that lacked the 3G or 4G network coverage. It
was his testimony that such network challenges had been anticipated – and so, the 1st respondent had
duly sounded necessary caution. However, the deponent averred, regardless of whether the electronic
system duly functioned, the Forms 34A would still be physically delivered at the constituency tallying
centre; and the Forms 34A would then be used to tally the constituency votes: and thereafter the
results would be entered in Forms 34B. The Forms 34B would then be transmitted to the National
Tallying Centre – where the Commission would sum-up in Form 34C, which would be the basis for
declaring the results. Consequently, the deponent averred, it was not necessary to have Forms 34A in
possession during the summation of Presidential election results. It followed, therefore, that the early
voting results transmitted on television screens were only provisional, as the authoritative results would
be based on the constituency tally in Forms 34B.
126. Dr Karanja Kibicho, in his adavit sworn on August 24, 2017 carries depositions focussed upon the
statements made on behalf of the petitioners by Dr Nyangasi Oduwo. He averred that, in his capacity
as Principal Secretary in the Ministry of Interior and Co- ordination of Government, he had in July,
2017, received information that some chiefs in Makueni County were unlawfully using their positions,
as well as government facilities, to participate in political campaigns – whereupon he duly informed
the 3rd respondent, who issued the necessary warning to halt such a practice.
127. Ms Marykaren Kigen-Sorobit, the Jubilee Party‘s deputy chief executive ocer, made depositions in
response to the statements of Mr Wamuru for the petitioners. She averred that Mr Wamuru had cited
non-existent polling stations, and claimed that the NASA coalition agents had been excluded from
certain polling stations. The deponent annexed evidence in the form of Form 34A, showing that one
Ms Eunice Muthoni Ndwiga had been the NASA agent at the Karurumo Youth Polytechnic polling
centre, and had duly signed the form, without any reservation.
128. The deponent averred that Mr Benson Wasonga for the petitioners, had stated that there were
anomalies in the declaration of Presidential-election results, though without specifying the particulars
of such anomalies. She deposed that the summation of the total valid votes in the portal is 15,180,381;
and that by Form 34C, the 1st petitioner‘s votes were 6,762,244 while those for the 3rd respondent
were 8,203,290.
129. Ms Winifred Waceke Guchu swore an adavit on August 24, 2017, in her capacity as the Executive
Director of the Jubilee Party, and deputy chief Presidential agent for the 3rd respondent. She averred
that the dierence of 1,441,066 votes that separated the vote tallies of the 3rd respondent and the 1st
petitioner, was a strong enough signal by the voters, who were expressing their free and sovereign will;
and she perceived it as relevant to the orientation in political choice, that the Jubilee Party won the
majority of elective positions for the oce of County Governor; Senator; Member of the National
Assembly; Women‘s Representative in the National Assembly; and Member of County Assembly, all
from the same General Election.
130. The deponent averred that the petitioners had, on August 10, 2017 written a letter to the 1st
respondent, claiming to have in their possession Presidential election results which diered from the
results being shown on the IEBC portal at the time; and just before issuing this letter, the petitioners
had made widely-publicised claims that the results transmission system had been corrupted through
hacking.
131. The deponent averred that the Constitution imposes no duty on the 1st respondent to use electronic
systems of results transmission exclusively: the only mandate of the 1st respondent being, to ensure that
the electoral system is simple, accurate, veriable, accountable and transparent. She averred that Section
44A of the Elections Act entrusts to the 1st respondent a statutory discretion to apply a complementary
mechanism, where technology fails, or cannot meet the constitutional threshold of a free and fair
election.
132. The deponent averred that upon the conclusion of voting, the counting exercise had begun, in the
presence of all agents present, observers, police ocers, and all authorized persons. She deponed that
according to ELOG, an observer group which deployed one of the largest observer-delegates, the
petitioners had a good representation of agents. She believed that even where such agents failed to sign
the prescribed forms, such failure would not invalidate the vote-count results, in the light of the terms
of regulations 62(3) and 79(6) of the Elections (General) Regulations, 2012. She deponed that once
the counting process at the polling station was concluded, the results were simultaneously dispatched
electronically to the constituency tallying centre and the National Tallying Centre, and these were the
results which then streamed onto the public portal at the Bomas of Kenya.
133. The deponent averred that since the 1st respondent did not own telecommunication network facilities,
it relied on licensed service providers. Such service providers were under obligation, under Regulation
20 of the Elections (Technology) Regulations, 2017 to provide and deliver services as may be requested
by the 1st respondent. The 1st respondent, in consultation with the service providers, was required
under regulation 21 of the said regulations, to identify and communicate in a timely manner, to all
stakeholders, about the network service available at dierent polling stations, and in areas where there
was no telecommunication network. Thus, the deponent averred, Parliament introduced Section 44A,
to provide a complementary mechanism for the identication of voters and the transmission of results.
134. The deponent averred that after the Court of Appeal decision in the Maina Kiai case, it had
been conrmed that regulation 83 would be the complementary system applicable in respect of
the transmission of election results, in the event of failure of the technological mechanism. The
complementary mechanisms would take the form of the physical delivery of Forms 34A from the
polling stations to the returning ocers at the constituency tallying centre, while constituency
Returning Ocers would deliver Forms 34B to the National Tallying Centre in Nairobi.
135. The deponent made averments regarding the claim of irregularity in the elections appearing in Dr
Nyangasi Oduwo‘s adavit. She averred that in the overwhelming majority of the cases cited by Dr
Oduwo, the statement had not revealed the features typied as irregular. She deponed that neither
the Elections Act nor the Election (General) Regulations requires that Forms 34A should bear the 1st
respondent‘s stamp; and the failure of an agent to sign the forms at the counting hall did not invalidate
the results.
136. In response to allegations of discrepancies in Forms 34A and 34B, the deponent averred that no
signicant variations existed. She produced a report (exh. WG 13) which showed that after reconciling
the discrepancies in the forms attached to Dr Nyangasi Oduwo‘s adavit, the eect was that the
petitioner‘s vote-tally improved by 595, while that of the 3rd respondent decreased by 1199 votes.
137. The deponent respondent to the deposition from the petitioners‘ side, that the nal tally of
Presidential-election votes had not included the results for Nyando Constituency, where the 1st
petitioner had obtained 60,715 votes while the 3rd respondent obtained 214 votes: she deponed that
such an oversight was not fatal, as, by Regulation 87 of the Election (General) Regulations, the 2nd
respondent has authority to declare the Presidential election results where, in the opinion of the
Commission, results not yet received would not make a dierence in the nal results.
138. Responding to the claim by the petitioners that there had been a suspicious disparity between the
Presidential vote totals and the totals for other elective oces in the same constituencies, the deponent
exhibited an analysis of results from 94 constituencies – showing that the votes cast in one or more
of the ve other sets of elections, were more than the votes cast at those levels, for the Presidential
candidates.
139. The deponent denied the allegation made in adavits sworn for the petitioners, that the voting results
streamed by the Commission had shown a constant 11% margin between the vote-count for the 1st
petitioner and for the 3rd respondent: in line with other depositions for the respondents, she stated
that such a gap in vote-count percentages had kept shifting constantly.
140. The deponent responded to the averment from the petitioners‘ side, that the 3d respondent‘s electoral
strength had beneted from running governmental actions which showed him in positive light, and
thus constituted censurable undue inuence. She averred that there was no requirement in law that
on-going government programmes be suspended during the election period; and that, as Article 35
of the Constitution safeguards the right to information, the required openness made a case for current
government projects and activities to be held accessible to all.
141. In further support of the respondents‘ stand, is the adavit by Davis K. Chirchir, sworn on August 24,
2017. He avers that the collation of election results in Form 34C and the announcement thereof, was
done after all Forms 34B, save as regards Nyando Constituency, had been electronically transmitted to
the National Tallying Centre. He deponed, in line with the depositions of Ms Guchu, that the voting
results for Nyando Constituency which had not been collated at the time of results declaration, had
no eect on the outcome.
142. The deponent averred that, quite contrary to the reprobation of the vote-result transmission measures
taken by the Commission, the actions taken had been based on the authority of the law. This
transmission question had already featured in a High Court decision (National Super Alliance v IEBC
and others, Petition No 328 of 2017) and a Court of Appeal decision (National Super Alliance (NASA)
Kenya v The Independent Electoral and Boundaries Commission and 2 others, Civ Appeal No 258 of
2017), where it was held that the 1st respondent had duly put in place a complementary mechanism in
terms of section 44A of the Elections Act, 2011 and that it had, with public participation, established
regulations to operationalize the said statutory provision. In this context, the deponent averred that
any failure of the technological devices would not impair the electoral process, or become the basis for
invalidity of the electoral process.
143. The deponent averred that the petitioners‘ claim that the security of the integrated electoral
management system (KIEMS) had been compromised, was not substantiated with any transcripts of
video clips, or any other material reference.
144. The deponent averred that the 1st respondent had kept in full control of its electronic transmission
system at all times, and that no evidence showed it to have ceded its management or authority in
that regard, to any third party. He deponed that it was not true as alleged, that the transmission of
results from 11,000 polling stations had been compromised – especially as none of the petitioners had
contested the contents of Forms 34A from the relevant polling stations. He further averred that it
would not be true, as alleged by the petitioners, that a total of 11,000 polling stations would represent
as much as 7,700,000 voters, given that the number of registered voters per polling station varied from
one to a maximum of 700.
145. The deponent deposed that it was not a factual statement coming from the petitioners, that the IEBC
had the election results streamed on the website, represent a constant percentage of 54% and 44%
respectively, for the 3rd respondent and the 1st petitioner: instead, the variation between the two had
oscillated between 27.06% and 9.22% in favour of the 3rd respondent.
146. The deponent‘s perception, on the electoral process as a whole, was that, the 3rd respondent had been
duly elected in a free, fair, credible and valid election conducted on August 8, 2017.
D. Does The Petitioners‘ Case Rest on Fact? Have They Discharged the Burden of Proof? Did the
Respondents Discharge the Evidential Burden? Who is Favoured by the State of the Evidence?
147. The objective merits of this case must be drawn from the foundation of fact. I will subsequently revert
to the vitality of fact, in the conguration of jurisprudence – the juristic and scholastic preoccupation
with the essence of law, and its dening role in social, economic, political, religious or other crucial
human engagements.
148. Fact is thus dened: Something that actually exists; an aspect of reality… (Black‘s Law Dictionary, 8th
ed (Bryan A Garner, ed) (St Paul, MN: West Group, 2004), p628).
149. Fact, therefore, is as reliable as the concrete foundations of a skyscraper; and it is to be counted upon as
a basis of objectivity and truth. The practice of law, and more particularly, the motions of the judicial
process via the minds and hands of Judges – society‘s trustees for justice – are invariably lodged upon
the pillars of fact, this being proered through evidence.
150. The merits of the petitioners‘ case stand to be tested in the rst place through evidence. What evidence
did the petitioners adduce" And did they discharge their initial burden of proof, and complete it with
an eective clearance of the constant legal burden resting upon them"
151. The evidence scenario speaks for itself, as may be summarized here:
i. the petitioners resort to broad assertions of alleged wrongs on the part of the 1st and 3rd
respondents;
ii. such alleged failings are lined up against the Constitution‘s prescription of certain values,
principles and norms;
iii. the petitioners‘ statements are often plaintive, and inviting the Court to ascertain their true
scope, in terms of legality and propriety in the measures taken by the respondents;
iv what the petitioners present as fact, relates primarily to the electronic transmission of election
results, rather than the physical conduct of voting and enumeration of ballot;
v and what the petitioners present as fact, in relation to polling day, and to the count of votes,
has been responded to in substantial detail in the consistent evidence emanating from the
respondents;
vi. the deponents on the respondents‘ side have responded to the statements from the petitioners‘
side: they have given testimony describing their actions in the conduct of the General Election
of August 8, 2017, as regards the tally and count of votes, and the recording, transmission and
declaration of results. The respondents have in the process, explained the actions they took just
before, in the course of, and in the aftermath of voting day – explaining such impediments as
aected the electoral process, and invoking specic provisions of the Constitution and the law,
by virtue of which they had acted.
152. Does one behold a clear evidence-scenario, such as ought to lead a duly- perceptive Court in some
particular direction, of course, barring some weightier consideration of justice which compels a
dierent course"
153. From the evidence, the petitioners do not seek an ascertainment of the true number of votes cast for the
1st petitioner and for the 3rd respondent – even though these, as required by law, had been delivered
to the Supreme Court, and are kept in the custody of the Registry. The petitioners have focussed the
burden of their case on apprehensions as to the perfect security of the transmission system, whereby the
election results had earlier been relayed, before the physical records were received, organized and kept
by the 1st respondent. They have claimed an improper tallying of votes from dierent polling stations,
though this has been denied, on the basis of specic evidence, and exhibits showing the contrary. They
have spoken of improper conduct during election, on the part of certain government ocials, said to
have unduly beneted the 3rd respondent‘s electoral platform – but these claims have been denied
by witnesses for the respondents. The veracity of such averments have been brought to question by
the detailed testimony of the respondents‘ witnesses, Dr Kibicho and Mr Wakahiu. The attributions
to the 3rd respondent of improper inuence, intimidation and corruption, therefore, are not just
unsubstantiated, but also fail to meet the high standards of proof required for criminal charges.
154. The petitioners assert, in broad terms, that the 1st respondent, in the conduct of elections, did not
abide by the terms of article 86 of the Constitution, which requires elections to be conducted in a
manner that is simple, accurate, veriable, secure, accountable and transparent [Article 86(a)]. Yet
the use of the manual ballot paper would clearly meet such conditions: the voter has no diculty in
marking it; its reality and visibility is not in doubt; it is veriable, as a check so readily reveals the voter‘s
exercise of his or her right of choice; it is secure; it is transparent; it is accountable.
155. The votes cast had been announced at the polling stations, where they were tabulated, and results
announced. From that initial ascertainment of the voting situation, the results were collated at the
constituency tallying centre, and announced at that level. The 1st respondent thereafter provided the
Forms 34A from all polling stations; Forms 34B from constituency tallying centres; and Forms 34C
at the National Tallying Centre – which was signed by all the Presidential election agents, save for the
petitioners‘ agent. Thus, from the evidence in this Court‘s record, the claim of non-compliance with
the terms of Article 86 of the Constitution, does not stand up.
156. More substantial and more persuasive evidence, in my perception, has emanated from the respondents
side. Several examples of such evidence may be set out here:
i. Mr Chebukati, who had been the Returning Ocer for the Presidential Election, gave
testimony that the veriable, physical count of the votes cast showed that the 3rd respondent
had garnered 8,203,290 votes, as against the 1st respondent who received 6,762,224 votes; and
these results were duly recorded in Form 34C, which was itself abstracted from the Forms 34B
forwarded to the National Tallying Centre from the constituency tallying centres, as well as
the diaspora vote tallies.
ii. Mr Chebukati deponed that the primary results-declaration Forms (Forms 34A and 34B) had
in no way been compromised, as regards their accuracy and overall integrity. He deposed that
the Forms 34B had been duly forwarded from the constituencies to the National Tallying
Centre, for verication with Forms 34A and for tallying.
iii. Mr Chebukati deponed that the Commission had taken all the necessary steps to ensure that
the General Election in all its components, complied with the constitutional requirements of
simplicity, accuracy, veriability, security, transparency and accountability.
iv Mr Chebukati‘s averments are specic, matter-of-fact, and in line with vital evidence
emanating from other deponents on the respondents‘ side. For instance, Mr Chiloba, the 1st
respondent‘s Chief Executive Ocer, conrms that the tallying and transmission of results
took place at the polling stations, after which the vote-count was collated and declared at the
constituency tallying centre and the National Tallying Centre. Mr Chiloba gave a clear account
of the transmission system used by the 1st respondent, as well as of the context and modalities
of the recently-introduced Kenya Integrated Electoral Management System (KIEMS).
v Mr Muhati in his adavit, gave still more details on the working of the electronic transmission
system – an account that was entirely consistent with the averments of both Mr Chebukati
and Mr Chiloba.
vi Specic and credible evidence, in relation to the factual situation attending the conduct of the
General Election of August 8, 2017, is recorded by other deponents, such as Ms Immaculate
Kassait, the 3rd respondent, Mr Wakahiu, Ms Guchu, Mr Chirchir, Dr Kibicho, Mr Omwenga,
and Ms Kigen-Sorobit.
157. Judges entertaining the competing claims of parties, constantly have to form an opinion, and, from
objective criteria and conviction, eliminate the credible from the incredible, the truth from the untruth.
That has to be done in this instance. The factual accounts of the respondents are rm and gripping.
They are credible, and represent the substantial truth. However, no account of equal strength is
beckoning from the other side.
158. I cannot but conclude that, on facts conveyed through evidence, in support of the petitioners‘ case,
they are on weak grounds, as compared to the respondents. In establishing the merits of their case,
the petitioners had both the ultimate legal burden of proof, and the shifting evidential burdens falling
upon them. They did not, in my appraisal, discharge even the early evidential burden – the eect being,
in the end, that they made no valid case against the respondents.
159. The law of burden of proof, at the beginning and in the course of trial, has been the subject of
scholarship. Dr HF Morris in his learned work, Evidence in East Africa (London: Sweet & Maxwell,
1968) [p 134], thus considered this issue:
The distinction is commonly made by commentators on the law of evidence between the
use of the term in the sense of the burden which lies throughout the trial of establishing a
case – usually called the general burden of proof – and in the sense of the onus of producing
evidence at any particular stage during the trial. There is a general burden of proof, which
lies throughout the trial upon one of the parties and never shifts to the other, to establish the
case….In a civil case this burden lies upon the party who would lose if no evidence at all were
to be produced, that is to say, in order to win he must establish his case by a preponderance
of evidence and, coupled with the onus of discharging this burden, is his right to begin.
160. Such a position is reected in Kenya‘s Evidence Act (cap 80, Laws of Kenya), which thus provides
[Section 107]:
Whoever desires any court to give judgment as to any legal right or liability dependent on
the existence of facts which he asserts must prove that those facts exist.
E. The Petition: Any Other Basis of Claim?

161. How is the Court to be guided in relation to the petitioners‘ claims that
"the Presidential election was so badly conducted, administered and managed…that it failed
to comply with the governing principles established under articles 1, 2, 4, 10, 38, 81, 82, 86,
88, 138, 140, 163, and 249 of the Constitution…; the Elections Act… and the regulations made
thereunder including the Electoral Code of Conduct….; and in relation to the assertion that
[t]he massive, systemic, systematic and deliberate non-compliance with the Constitution and
the Law goes to the very core and heart of holding elections as the key to the expression of the
sovereign will and power of the people of Kenya, Undermines the foundation of the Kenyan
system as a sovereign republic where people are sovereign under article 4 of the Constitution,
and severely undermines the very rubric [sic] and framework of Kenya as a nation State?"
162. How is the court to be guided in respect of the petitioners claims that:
"[t]he Presidential Election contravened the principles of a free and fair election under
Article 81(e) of the Constitution as read with section 39 of the Elections Act…; that [t]he
entire process of relay and transmission of results from polling stations to the constituency
and National Tallying Centre…and from the constituency tallying centres to the NTC…was
not simple, accurate, veriable, secure, accountable, transparent, open and prompt…[and]
substantially compromised and aected the requirement of free and fair elections under
article 81(e)(iv) and (v) of the Constitution; that [t]he data and information recorded in
Forms 34A at the individual polling stations were not accurately and transparently entered
into the KIEMS at the individual polling stations; that [t]he Presidential Election was not
administered by the 1st respondent in an impartial, neutral and accountable manner as
required under article 81(e)(v) of the Constitution; that the 1st respondent abetted and
allowed the electronic media and news channels to relay and continue relaying the purported
results, which the 1st respondent was aware had no legal or factual basis, as well as other
claims similarly couched"
163. Such claims invoke the question as to the 1st respondent‘s compliance with the law in every detail,
though without necessarily adverting to the objective facts, as borne by the evidence. The Court has
to consider whether such contentions should be a basis for annulling the outcome of the Presidential
election of August 8, 2017. This takes us to the line of jurisprudence now established, in electoral
matters.
F. Kenya‘s Jurisprudence in Election Matters
a. The terms of the Constitution
164. The Constitution of Kenya, 2010, which represents the people‘s much laboured initiatives to nd
a pacic, rational and humane regulatory structure for governance, bears certain principles, and it
safeguards certain rights and values in unambiguous terms. It safeguards the rule of law, democracy
and participation of the people [article 10(2)(a)]. It safeguards political rights, in detailed terms
which include the provision [article 38(3)(b) and (c)] that every adult citizen has the right, without
unreasonable restrictions, to vote by secret ballot in any election; and to be a candidate for public
oce…and, if elected, to hold oce.
165. Such sacrosanct safeguards have to be so interpreted as to accord them true operational meaning. The
same Constitution entrusts the interpretive mandate to the courts, to which, for the faithful discharge
of the task, the voters have entrusted their adjudicative sovereignty [the Constitution, article 1(3)(c)].
166. How are the courts to interpret such rights and safeguards" The answer is provided in the Constitution
itself. Article 20(3) thus stipulates:
In applying a provision of the Bill of Rights, a court shall –

…
b. adopt the interpretation that most favours the enforcement of a right or
fundamental freedom.
And if it is the Supreme Court that is undertaking such interpretation, then, just like the other Courts,
it is under obligation [article 20(4)(a)] to promote the values that underlie an open and democratic
society based on human dignity, equality, equity and freedom.
167. The Supreme Court, just like the other courts, in the course of performing its safeguarded interpretive
mandate, is under obligation, certainly in the straightforward case, to be guided by the principle that
justice shall be administered without undue regard to procedural technicalities [article 159(2)(d)], and
the principle that the purpose and principles of this Constitution shall be protected and promoted
[article 159(2)(e)].
168. The Constitution enjoins all courts, in the exercise of their interpretive mandate, to adhere to certain
well-dened paths, these being:
a. a manner that promotes [the Constitution‘s] purposes, values and principles [article 259(1)(a)];
b. a manner that advances the rule of law, the human rights and fundamental freedoms in the Bill
of Rights [article 259(1)(b)];
c. a manner that contributes to good governance [article 259(1)(d)].
169. The foregoing prescriptions, in the context of the exercise of the people‘s electoral rights as took place
on August 8, 2017, are the rm foundation upon which I have founded my dissent from the majority
opinion, in this critical election petition. The majority decision, in my considered opinion, has not
only done short shrift to the governing terms of the Constitution, but also failed to adhere to the clear
path of the law which has evolved, including this court‘s precedents on electoral law.
b. The Electoral Law

170. Just as with the Constitution itself, so with the regulatory set of norms, including the statutes and
regulations: they all fall to the interpretive mandate of the Courts. This fact, on the plane of legal
scholarship, ought to be apprehended as the inherent common law chain that runs through the
motions of judicialism, in Kenya, as in so many other countries of the common law world. The long-
established rationales of the judicial method remain with us today: and they ordain the espousal of the
doctrine of precedent – a universal concept which, indeed, is expressly replicated in the Constitution
of Kenya, 2010.
171. Thus, this Constitution stipulates:
All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court
[article 163(7)].
The Constitution prescribes competence in common law principles as prerequisite in the appointment
of Judges, in the following terms [article 166(2)]:
Each judge of a superior court shall be appointed from among persons who –
(a) hold a law degree from a recognized university or are advocates of the High
Court of Kenya, or possess an equivalent qualication in a common-law
jurisdiction.
172. The common law interpretive method, is the constant milieu within which the application of Kenya‘s
electoral law, beginning from the Constitution to the subsidiary legislation, is to be apprehended.
173. Once the Judge accomplishes the task of interpreting the electoral law as provided in the Constitution,
the Judge comes down to a whole set of statutes and regulations – the latter category comprising –
i. the Supreme Court Act, 2011 (Act No 7 of 2011);
ii. the Appellate Jurisdiction Act (cap 9, Laws of Kenya);
iii. the Elections Act, 2011 (Act No 24 of 2011);
iv the Election Campaign Financing Act, 2013 (Act No 42 of 2013);
v the Election Offences Act, 2016 (Act No 37 of 2016);
vi. the Independent Electoral and Boundaries Commission Act, 2011 (Act No 9 of 2011);
vii. the Political Parties Act, 2011 (Act No 11 of 2011).
174. How has the court interpreted such laws? Where is the Supreme Court‘s earlier work recorded, in that
regard? And since the applicable law is the pertinent one for each electoral dispute, what is the current
state of the law? How does such law apply in relation to a petition before the Supreme Court, in relation
to the General Election of August 8, 2017? Does such law aect the Presidential election of that date,
dierently from the manner in which it aects the other ve sets of elections of the same date?
c. The Rationale of the Case Law

175. Case law, the law as interpreted and applied by Judges, on the recorded merits of each matter, has for
ever been the cornerstone of the common law. It is precisely the common law‘s focussed and authentic
appraisal of the facts of each case, that made it ever so compelling, as a dening strand in the judicial
contribution to progressive, modern governance in conditions of democracy.
176. Jurisprudential conrmation for the foregoing standpoint is found in the work of a distinguished
Justice of the Supreme Court of the United States of America, Benjamin Nathan Cardozo (1870-1938)
[The Nature of the Judicial Process (New Haven: Yale University Press, 1921), pp 28-31]:
[T]he problem which confronts the judge is…a twofold one: he must rst extract from the
precedents the underlying principle, the ratio decidendi; he must then determine the path
or direction along which the principle is to move and develop….Cases do not unfold their
principles for the asking. They yield their kernel slowly and painfully….
The directive force of a principle may be exerted along the line of logical progression; this
I will call the rule of analogy or the method of philosophy; along the line of historical
development; this I will call the method of evolution; along the line of the customs of the
community; this I will call the method of tradition; along the line of justice, morals, and
social welfare, the mores of the day; and this I will call the method of sociology.
177. Such challenges of adjudication dictate that, the gains of the past, authoritative interpretation by a
discerning and responsible court, be perceived as representing a precious juristic civilization; and these
are for keeps, as a reference-point for the conscientious and eective resolution of later disputes.
178. Now the judicial approach in the sphere of electoral law is obviously inseparable from the Constitution‘s
values and the principles of democracy. It thus behoves us to pay due deference to the fundamentals
of the sets of cases that have, in the last several years, been determined by this Supreme Court, on the
subject of elections – including Presidential elections. Such is, quite conclusively, the most dependable
course of the law that this country‘s lawyers must engage, in the rst place.
d. Case Law: Illustration

179. In Raila Odinga and others v Ahmed Issack Hassan, Sup Ct Petition No 5 of 2013, this court took into
account the nature of the governance mandate under the Constitution, and, in response to a challenge
to the integrity of the Presidential election, laid down a set of guiding parameters. The court thus
remarked [para 298]:
An alleged breach of an electoral law, which leads to a perceived loss by a candidate…takes

dierent considerations. The oce of President is the focal point of political leadership
and, therefore, a critical constitutional oce. This oce is one of the main oces which,
in a democratic system, are constituted strictly on the basis of majoritarian expression. The
whole national population has a clear interest in the occupancy of this oce which, indeed,
they themselves renew from time to time, through the popular vote.
180. Flowing from the crucial majoritarian factor in the lling of the primary oce of the Executive branch,
the court, in that case, dened its orientation as regards the resolution of an electoral dispute, such as
the one which has come up before us [para 299]:
As a basic principle, it should not be for the court to determine who comes to occupy the
Presidential oce; save that this court, as the ultimate judicial forum entrusted under the
Supreme Court Act, 2011 (Act No 7 of 2011) with the obligation to assert the supremacy of
the Constitution and the sovereignty of the people of Kenya‘ [section 3(a), Supreme Court Act
2011 (Act No 7 of 2011)], must safeguard the electoral process and ensure that individuals
accede to power in the Presidential oce, only in the compliance with the law regarding
elections.
181. The foregoing principle, in this Supreme Court‘s perception, dictated that even though the court must
uphold the clear popular, electoral choice, it will hold in reserve the authority, legitimacy and readiness
to pronounce on the validity of the occupancy of [the Presidential] oce, [in case] there is any major
breach of the electoral law… [para 300].
182. The foregoing point, regarding the Supreme Court‘s obligation of vigilance, is expressed still more
clearly [para 301]:
The Judiciary in general, and this Supreme Court in particular, has a central role in the
protection of the Constitution, and the realization of its fruits, so these may inure to all
within our borders; and in the exercise of that role, we choose to keep our latitude of judicial
authority unclogged: so the Supreme Court may be trusted to have a watchful eye over the
play of the Constitution in the fullest sense. Even as we think it right that this court should
not be a limiting factor to the enjoyment of free political choices by the people, we hold
ourselves ready to address and to resolve any grievances which ow from any breach of the
Constitution, and the laws in force under its umbrella [emphasis supplied].
183. Such guiding principles were clear enough, and, in my perception, were attended with special merit.
These principles, today, represent the vital backdrop to Kenya‘s electoral law.
184. In the foregoing case, this court, suo motu, undertook a sample re-tallying of votes, coming to the
conclusion that,
"by no means can the conduct of this election be said to have been perfect, even though,
quite clearly, the election had been of the greatest interest to the Kenyan people, and they
had voluntarily come out into the polling stations, for the purpose of electing the occupant
of the Presidential oce" [para 303].
The court, while being mindful of the several imperfections noted during the sample re- tallying,
mainly directed its mind to the emerging majoritarian intent, asking itself the following question,
before upholding the electoral outcome [para 304]:
Did the petitioner clearly and decisively show the conduct of the election to have been so
devoid of merits, and so distorted, as not to reect the expression of the people‘s electoral
intent" It is this broad test that should guide us in this kind of case, in deciding whether we
should disturb the outcome of the Presidential election.
185. The precedent-setting decision was distinctly endorsed by subsequent electoral dispute cases: and
it must now be regarded as the pillar of the scheme of electoral law in Kenya – founded upon a
benecent interpretation of the Constitution, and of the whole body of electoral law. This point, for
good measure, is consistent with the comparative adjudicatory experience in election matters. As the
retired Israeli Justice of the Supreme Court, Aharon Barak [The Judge in a Democracy (Princeton:
Princeton University Press, 2006), p 200] observes:
Comparative law can help judges determine the objective purpose of a constitution.
Democratic countries have several fundamental principles in common. As such, legal
institutions often full similar functions across countries. From the purpose that one given
democratic legal system attributes to a constitutional arrangement, one can learn about the
purpose of that constitutional arrangement in another legal system. Indeed, comparative
constitutional law is a good source of expanded horizons and cross-fertilization of ideas
across legal systems.
186. On such a basis of principle, the law and practice in the United Kingdom of Great Britain may be
cited, for its relevance in the instant case. An apt summary of that position was made by a distinguished
scholar, Stanley A de Smith, who was Downing Professor of the Laws of England in the University of
Cambridge [Constitutional and Administrative Law, 3rd ed (Harmondsworth: Penguin Books, 1977),
p 252]:
Petitions based on …irregularities at…elections are now extremely rare; this is partly because
very close contests are uncommon and even if the court nds that irregularities were present
it may determine that the result ought to stand since they were unlikely to have aected the
results [emphasis supplied].
187. Such a state of the law is reected in yet another decision of this court, Munya v Kithinji & 2 others,
Sup Ct Petition No 2B of 2014, in which it was thus held [paras 217, 218]:
If it should be shown that an election was conducted substantially in accordance with the
principles of the Constitution and the Elections Act, then such election is not to be invalidated
only on the ground of irregularities.
Where, however, it is shown that the irregularities were of such a magnitude that
they aected the election result, then such an election stands to be invalidated.
Otherwise, procedural or administrative irregularities and other errors occasioned by human
imperfection, are not enough, by and of themselves, to vitiate an election.
188. On the same principle, the Supreme Court thus held, in Kidero & 4 others v Waititu & 4 others, Sup
Ct Petition No 18 of 2014 [2014] KLR-SCK [para 341]:
…generally, an election can only be declared void if that election did not substantially
comply with the written law… – in this regard, the Constitution, the Elections Act, and the
Regulations made thereunder, and any other relevant law; and, where there is substantial
compliance with the written law in an election, the irregularities must indeed have aected
the result of the election for that election to be invalidated.
189. Yet another authoritative decision of this court is Obado v Oyugi & 2 others, Sup Ct Petition No 4 of
2014; [2014] KLR – SCK, in which it was thus held [para 139]:
Although the Court of Appeal cited the decision of this court in the Raila Odinga Case, it
did not apply the principle that a court should consider the eect of the irregularity in the
contested results. This principle holds that irregularities in the conduct of an election should
not lead to annulment, where the election substantially complied with the applicable law,
and the results of the election are unaected [emphasis supplied].
190. The Supreme Court ever so clearly dened the operative electoral law, on the basis of the Raila Odinga
petition of 2013, in the subsequent petitions. The Court was scrupulously arming the synchrony
of two express edicts of the Constitution of Kenya, 2010 – in Article 1(3) and article 159(1): the rst
dening the sovereignty of the people, and the second delimiting the judicial authority. By article 1(3),
the people‘s sovereign power is partly delegated to the judiciary and independent tribunals [article 1(3)
(c)]; while article 159(1), which constitutes the judicial authority, thus provides:
Judicial authority is derived from the people and vests in, and shall be exercised by, the courts
and tribunals established by or under this Constitution.
191. The foregoing principle was constantly reected in the Supreme Court‘s decisions rendered in 2013
and after – as is exemplied in George Mike Wanjohi v Steven Kariuki & 2 others, Sup Ct Petition No
2A of 2014, [2014], eKLR. In that case the court thus pronounced itself [para 131]:
This court should in principle, not substitute a sitting [elected representative] with
another, without allowing the people to execute their political rights, as enshrined under
the Constitution. To do otherwise would be to undermine the values and principles of
democratic governance that bind us, in the execution of our judicial authority. It would also
lead to an upset in the composition of the elected [oce-holders] who bear the people‘s
sovereignty, and would stand out as a clear disregard of the founding provisions of the
Constitution [emphasis supplied].
192. In hindsight, the foregoing passage in the Mike Wanjohi case touches on the very nub of judicial
responsibility, as it relates to the sovereignty of the people, who established the totality of the current
governance system, through the Constitution of Kenya, 2010.
193. It hence follows that the general guiding path for the disposal of electoral disputes such as the instance
one, could not have been stated more conscientiously and more eectively than it was in that case, thus
[para.110]:
By the design of the general principles of the electoral system, and of voting, in articles 81
and 86 of the Constitution, it is envisaged that no electoral malpractice or impropriety will
occur that impairs the conduct of elections. This is the basis for the public expectation that
elections are valid until the contrary is shown….
194. A consideration of the merits of an electoral petition such as the instant one, therefore, takes one
straight back to the evidence tendered; and here there is an inseparable link between constitutional
principle, and the pillars of evidence. Since, as I have already determined, the petition herein fails on
the pillars of evidence, it becomes clear that the majority decision lacks validity from the standpoint
of governing principles.
195. Evidence is the bearer of tell-tale signs of electoral victory, or of electoral defeat. The physical form of
the ballot is directly visible, and is readily subjected to the test [Constitution of Kenya, 2010, Article 86]
of simplicity, accuracy, veriability, security, accountability and transparency. This physical evidence,
quite clearly, is the natural starting point in ascertaining who has won an election: and hence the
majority Judgment would have been expected to begin from a foundation of numerical assessment,
before invoking any other parameters. For such other elements are essentially subjective, and are
inherently destined to compromise the sovereign will of the voters which the Constitution expressly
safeguards.
196. Only from such a foundation of the physical vote-count, does one secure a proper viewpoint for the
other dimensions of the electoral process, including the credibility of the entire operation. Indeed,
in view of the relative strength of the evidence emanating from the two sides, the only objective
conclusion would have been that, within the measure of the possible, the conduct of the election by
the 1st respondent was entirely credible.
197. The emerging principle, regarding the initiation of claims by way of election petitions, is that all
proof should commence from the foundation of the physical ascertainment of voting records. All
other claims then, must revolve around that pillar, and must establish that some gross impropriety
had aected the electoral process, and should lead to its annulment. I am constrained to propose
this scheme as a proper agenda for the reform of Kenya‘s electoral law. Such legal reform would
need to institute all appropriate security back-ups around the physical records, and would ensure the
establishment of safety- nets around the votes cast.
G. Issues of Broad, and Frequent Policy-making, Politics, and Exigency: Jurisprudential Questions
198. The instant case has evoked intense national debate, involving professionals, politicians, observers, and
others – the consequence being a justication, in this Judgment, for a clarication of the implications
of judicial intervention in situations that entail the legitimate exercise of the citizen‘s momentary
inclinations, on matters of politics and daily exigency. Falling squarely within such a category are the
people‘s legitimate preferences. What is the proper stand for the Supreme Court, in such matters"
How does the Judge‘s requisite approach relate to the majority decision, in the instant petition" My
consideration of such issues conrms my position in this dissenting Judgment.
199. By article 160(1) of the Constitution –
the Judiciary…shall be subject only to this Constitution and the law and shall not be subject
to the control or direction of any person or authority.
200. The Constitution, while safeguarding the Judiciary‘s adjudicatory space, entrusts certain governance-
spaces to other agencies – primarily the Legislature and the Executive: and this is the basis for the
constitutional principle, the separation of powers – a principle the validity of which, in the Kenyan
constitutional order, has not ever been seriously contested.
201. The Judiciary is the trustee of the people‘s sovereign power [article 1(3)] with regard to the
interpretation and application of all the terms of the Constitution, and of all other law. Clearly, a
substantial initiative in the motions of the entire sphere of law, legality and jurisprudence, has been
reserved to the courts.
202. As the outer limits of such reserved competence has not been specied in express terms, it follows that
the frontier areas of such power, at least potentially, admit of conicting interpretive approaches. But,
as already noted earlier, the proper trustee of the boundary- delimiting ethics must be the Judiciary – an
arm of the state which is endowed with the special facility of juristic values; objective criteria of conict
resolution; a placid mien, such as facilitates professionalism, justice and fairness; and the benet of
access to relevant comparative lessons.
203. The Judiciary, in the exercise of such an exclusive mandate, ought to enter upon its task by taking into
account the uncontestable reserved remits of the other agencies of the state. The people, in exercise of
their sovereign power, have expressly delegated some of that power to Parliament and the legislative
assemblies in county governments [article 1(3)(a)]; and they have exclusively entrusted some of their
sovereign powers to the national executive and the executive structures in the county governments.
204. There is no basis for abridging Parliament‘s power and mandate; for the Constitution [Article 94(1)]
prescribes that the legislative authority of the Republic is derived from the people and, at the national
level, is vested in and exercised by Parliament.
205. Similarly there is no basis for detracting from the general character of executive power, article 129(1)
prescribing that Executive authority derives from the people of Kenya and shall be exercised in
accordance with this Constitution.
206. Unlike the Judiciary, the work-orbit of which is lined up with laws, principles and jurisprudential
yardsticks, both the Legislature and the Executive, in view of their electoral and policy foundations,
may quite properly be described as political agencies. They relate to the largest number of Kenyan
people, in a close and direct proximity; they inuence and are inuenced by, the momentary concerns
which, therefore, justify the conception and espousal of policy and politics conceived and executed
within short time-frames.
207. This is in stark contrast with the relationship between the ordinary citizen, and the courts of law: and
if the courts overlook this reality, it will constitute a groundswell for failure of judicial responses in line
with the professional, juristic remit.
208. The prolonged history of judicialism, in all democratic countries, demonstrates that the proper role of
the courts has been professional, judicial, and founded upon cardinal principles which draw lines of
correctness and propriety in situations of dispute, so as to secure a certain optimum level of safeguards
for the rights of the citizen. Beyond that level of safeguard and fullment, it falls to the political agencies
to pursue constantly, such policy stands as will satisfy, and give fullment to the national populace.
209. On these principles of institutional disposition, it follows that it falls not to the court, to make undue
haste in assuming the policy mantle; a stampede is destined not only to disrupt the delicate institutional
balances, but to weaken the reliable jurisprudential bedrock, which assures the citizens of an ultimate
governance safety-net.
210. In the context of the foregoing reasoning, it follows, in my view, that the majority on the instant
petition, has made a precarious move, that is destined to prove detrimental to the dependable setting
of relations among essential governance entities – to the detriment of the rights and legitimate
expectations of the citizen.
211. The majority on the Bench thus pronounced itself:
(i) As to whether the 2017 Presidential Election was conducted in accordance with the principles
articles 10, 38, 81 and 86 of the Constitution as well as…Sections 39(1C), 44A and 83 of the
and inter alia the Elections Act….
(ii) As to whether there were irregularities and illegalities committed in the conduct of the 2017
Presidential Election, the court was satised that the 1st respondent committed irregularities
will be given in the detailed and reasoned Judgement of the court…
(iii) As to whether the irregularities and illegalities aected the integrity of the election, the court
election.
212. From such ndings, the majority went on to make orders nullifying the election results, as follows:
(i) A declaration is hereby issued that the Presidential Election held on August 8, 2017 was not
(ii) A declaration is hereby issued that the 3rd respondent was not validly declared as the President
(iii) An order is hereby issued directing the 1st respondent to organize and conduct a fresh
Presidential Election in strict conformity with the Constitution and the applicable election laws
within 60 days of this determination….
213. Such a determination is in clear departure, in the rst place, from the state of the evidence. As already
indicated herein, the petitioners‘ case rests on just one dimension of the electoral process – electronic
transmission of results. Moreover, the bulk of the assertions made as regards transmission, is just
that, contentions, with only limited testimonial ingredient: it is hardly evidence – what Black‘s Law
Dictionary, 8th ed (Bryan A Garner) (St Paul, MN: West, 2004) (p 595) thus rightly depicts:
Something (including testimony, documents, and tangible objects) that tends to prove or
disprove the existence of an alleged fact….
On the other hand, evidence in the true sense, a set of probative facts, is what came
forth from the respondents: and its tenor and eect was that, there were only limited
instances of failure of results-transmission; only limited cases of irregularity in vote-
addition and tabulation, not aecting the ultimate compilation and summation; the lawful
complementary device was put in service, in cases of failure in the transmission process;
all the physical voting records were available, and indeed, had been timeously availed to
the Supreme Court Registry, and could have been re-counted, to conrm that the 3rd
respondent had been properly declared as the President-elect.
214. Thus, on basic elements of trial, the essence of burden of proof was undischarged; and it was, in eect, a
reversal of the conventional process of judicial inquiry and determination – making a nding in favour
of the petitioners.
215. Secondly, the majority would appear to have taken leave of the juristic obligation to interpret the terms
of the articles of the Constitution invoked by the petitioners; the obligation to break these down, so as
to ascertain the discrete demands of the law; the obligation to consider the pertinence of the specic
statements of evidence from the petitioners, such as would answer to the constitutional and legal
principles invoked.
216. Thirdly, the majority departed, as it would seem, from the placid frame of the juridical setting, and
assumed direct responsibility for the immediate calls of policy or politics – by altering the design of
momentary, popular inclinations which are, by the terms of the Constitution, legitimate in all respects.
217. The damage such as may ow from such a deportment, is not yet plain to all, as is quite clear
from common perceptions recorded in the media, ever since the delivery of the majority Judgment.
Alexander Chagema [The Standard, September 7, 2017, p 15] wrote of A Little Shock Therapy from
the Supreme Court. Wycliffe Muga [The Star, September 7, 2017, p 20] thus wrote:
[When] I listened to the Supreme Court ruling on the presidential petition […] I knew very
well that I was watching history being made.
The Nairobi Condential of 4-10 September, 2017 [p 2] thus remarked:
The Supreme Court ruling that nullied the election of [the 3rd Respondent] on Friday has
thrown Kenya into one of the most complex and expensive political situations.
And Decky Omukoba in The Standard, September 11, 2017 [p 14] thus wrote:
What we have experienced as a nation is denitely a shift! The recent ruling by the Supreme
Court to nullify a presidential election has never happened before in the history of this
nation, or even this continent but it is undoubtedly a political and judicial shift that has
risen from years of tectonic plates of power pushing on each other within a constricted
democratic space.
218. The general perception associates the majority Judgment with an overtly political inclination. This,
precisely, is the Judgment‘s obvious departure from the professional plane of jurisprudence, as the
proper platform of the judicial arm of the state. The majority position would, of course, make history,
emanating from a basic principle aptly depicted by the distinguished historian, Professor Bethwell A
Ogot [History as Destiny and History as Knowledge: Being Reflections on the Problems of Historicity and
Historiography (Kisumu: Anyange Press, 2005), p 8]:
To tell the story of a past so as to portray an inevitable destiny is for humankind, a need
as universal as tool-making. To that extent, we may say that a human being is, by nature,
historicus.
So, by the magic jolt of September 1, 2017, general political history would have been made, even
though, as I maintain, this represents a departure from the jurisprudence of democratic systems, which
so much cherishes the separation of powers, and which so studiously commits the Judiciary to the
professional task of line-drawing, to ensure the sustenance of regular safeguards of the Constitution
and the law, for all.
219. In future inquiries, it may be established that the law, as advanced by its interpreters and scholars, has
its anchorage on the adjectival plane, from which it addresses the primary motions of social, economic
and political activity – agriculture, architecture and engineering, land development, seafaring, sport,
transport and communications, and others. The law stands to be formulated, moulded, interpreted
and applied, not for its own sake and in its own cause, but in relation to the said primary motions,
which preoccupy citizens and communities.
220. Thus, in the instant case, the electoral process had taken place, and now, its motions had to be matched
to the law as interpreted. By the interpretive scheme of the law, it does not stand the test of rationality or
ecacy, to merely allege some unspecied impropriety in the electoral process. The relevant clause of
the Constitution must be taken through an analytical process, and subjected to denite categorizations
which crystallise the specic concepts and elements said to have been violated. By this criterion, most
of the contentions of the petitioners in the instant case, on account of their broad generality, would
not stand up. The interpretive task, as it thus relates to the adjectival essence of the law, is inherently
professional – and is reected in the concept of jurisprudence, which deals with thought about law
[RWM Dias, Jurisprudence, 4th ed (London: Butterworths, 1976), p 17].
221. The Court, in the normal performance of its role, under the Constitution, is engaged in the specialized
process of jurisprudence. It follows that the more immediate, urgent and primary motions of basic
policy-making, inherently devolve to the political arms of the State, rather than the more specialized
entity which is the Judiciary.
222. This Judgment, apart from the occasion it proers for a reection on the law relating to elections, is
a basis for a rethink on law as a concept, and as a professional engagement, dened in a regulatory
framework applicable to the citizens‘ primary undertakings. From such a platform, it emerges that the
law‘s design in the hands of the judge, the lawyer and the scholar, rests in unity with the fundamentals
of constitutional governance – an important element of which is the independence of the judiciary.
On the basis of this principle, it is to be recognized that the judge‘s proper mandate lies several removes
from the citizen‘s momentary policy and political desires and expectations – which generally devolve to
the state‘s political agencies. By this perception, the judge‘s proper remit has its focus upon professional
engagement, founded upon objective scenarios, or criteria.
223. Such a perception of law and legal process, in retrospect, will be found to be in conformity with the
analytical schemes that mark the dedicated works of great jurists of the past. Denite exemplars, in this
regard, are the following jurists:
i. Lord Manseld (1705-1793) – see WS Holdsworth, Lord Mansfield, The Law Quarterly
Review, Vol 53 (1937), pp 221-234; Edmund Heward, Lord Manseld, 2nd Indian Reprint
(New Delhi: Universal Law Publishing Co Pvt Ltd., 2011);
ii. Professor Frederic William Maitland (1850-1906) – see OW Holmes, In Memoriam: Frederic
William Maitland, The Law Quarterly Review, Vol 23 (1907), pp137-138; Robert L Schuyler
(ed), Frederic William Maitland Historian: Selections from His writings (Berkeley: University
of California Press, 1960);
iii. Lord Atkin of Aberdovey (1867 – 1944) – Atkin, Law as an Educational Subject, Journal of
the Society of Public Teachers of Law (1932), pp 30-58; Georey Lewis, Lord Atkin, 2nd Indian
Reprint (New Delhi: Universal Law Publishing Co Pvt Ltd, 2008);
iv Justice Oliver Wendell Holmes, Jr (1841 – 1935) – see Holmes, The Common Law (Boston:
Little, Brown and Company, 1881);
v Justice Benjamin Nathan Cardozo (1870-1938) – see Cardozo, The Nature of the Judicial
Process (New Haven: Yale University Press, 1921);
vi. Professor Stanley Alexander de Smith (1922 – 1974) – see de Smith, Constitutional and
Administrative Law, 3rd ed (Harmondsworth: Penguin Books, 1977);
vii. Lord Denning of Whitchurch (1899 – 1999) – see Denning, What Next in the Law (Oxford:
Oxford University Press, 1982).
224. The special contribution of these judges and law scholars was to light up the orbit of jurisprudence, as
a dedicated sphere of thought, learning and preoccupation, that secured the requisite motions of the
dierent spheres of human activity, while arming the perceptions of integrity and propriety.
225. Such is the jurisprudential context in which I have considered the petition herein. The majority
decision, in eect, holds that the court may, quite directly, engage the course of national history –
through a precipitate assumption of recurrent policy-making or political inclinations and mandates.
In my considered opinion, judges, where the making of history devolves to them, should focus their
attention in the rst place, upon the intellectual and jurisprudential domain – rather than upon the
workaday motions of general policy and politics which devolve to the citizens themselves, and to the
political agencies of state.
226. On these premises, I hold that the majority decision fails to resonate with the Constitution and the law,
and with all relevant guiding principles. I would dismiss the petition with costs.
Dissenting Opinion of Njoki S. Ndungu, SCJ.
A. Introduction
1. By a petition dated August 18, 2017, and supported by evidence in the form of twelve adavits, the
petitioners alleged that the Presidential election was so badly conducted by the 1st respondent that
it failed to comply with the governing principles laid in the Constitution of Kenya, the Elections Act,
2011 and the Regulations made thereunder including the Electoral code of conduct. In summary, the
Petitioners case was that the non-compliance fatally compromised the conduct of the election and
consequently, the declaration of the 3rd Respondent by the 2nd Respondent as the President-elect.
2. After conclusion of the hearing and in strict conformity with the constitutional 14-day directive, the
court in a summary by the majority (Maraga CJ & P, Mwilu DCJ & DP, Wanjala & Lenaola, SCJJ)
delivered its decision nullifying the entire Presidential Election in the following terms:
i. As to whether the 2017 Presidential Election was conducted in accordance with the principles
articles 10, 38, 81 and 86 of the Constitution as well as, Sections 39(1C), 44, 44A and 83 of the
and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.
ii. As to whether there were irregularities and illegalities committed in the conduct of the 2017
Presidential Election, the court was satised that the 1st respondent committed irregularities
will be given in the detailed and reasoned Judgment of the court. The court however found no
evidence of misconduct on the part of the 3rd Respondent.
iii. As to whether the irregularities and illegalities aected the integrity of the election, the court
Election.
3. Having carefully evaluated the pleadings and the evidence, and having carefully dissected the
submissions of the parties during the hearing, I was of a dierent conclusion summarized in the form
reproduced below:
1. The court has rendered its Judgement by a majority. I am however, of a dierent opinion. At
the heart of democracy are, the people, whose will constitute the strand of governance that
we have chosen as a country. On August 8, 2017, millions of Kenyans from all walks of life
yielded to the call of democracy and queued for many hours to fulll their duty to our Republic
by delegating their sovereign power to their democratically elected representatives. This was
an exercise that was hailed by many regional and international observers as largely, free, fair,
credible and peaceful. That duty stands sacred and is only to be upset if there is any compelling
reason to do so. That reason must aect the outcome of the election.
2. The election was managed by the 1st respondent chaired by the 2nd respondent who were
assisted by hundreds of others to execute the mandate of the Commission under article 88 of
the Constitution. At the end of the process, the 2nd Respondent, in accordance with article
138 (10) of the Constitution, declared the result of the election. Having received more than half
of all the votes cast in the election and at least twenty-ve percent of the votes cast in each of
more than half of the Counties, the 3rdrespondent was declared President-elect.
3. The case revolved around three fundamental questions:
i. whether the election was conducted in accordance with the Constitution and the law?
ii. whether there were irregularities and illegalities committed during the conduct of the
election and
iii. if there were irregularities and illegalities, what was the integrity of the election?
In answer to these three issues, my opinion is that the election was indeed conducted in
accordance with the Constitution and the law. In fact, the 1st and 2ndRespondents to my
satisfaction demonstrated that they had adhered to the directions given by the Court of Appeal
in the case of Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Civil
Appeal No 105 of 2017 (the Maina Kiai case). The Court of Appeal in this case cautioned,
and I agree, that the results declared at the polling station are nal. In fact, the polling station
is at the heart of any election. It is what happens there that is to be assessed and that is why
its outcome is nal.
4. In any election, the ordinary Kenyan voter will ask themselves the following questions?
(1) Was there a problem with registration of voters?
(2) Were voters properly identied at the polling station?
(3) Were voters allowed to cast their ballots peacefully and within good time?
(4) Were the votes cast-counted, declared and veried at the polling station to the
satisfaction of all parties?
If the answer to all these questions is in the armative, then the election has been conducted
properly.
5. The Petitioners in my view did not present material evidence, to the standard required, to upset
the results returned to the National Tallying Centre by the presiding ocers in Forms 34A.
Those results, counted and agreed upon by Agents at the polling station were not challenged.
What was ercely contested was the mode through which those results were transmitted from
the polling station to the National Tallying Centre. The 1st and 2ndRespondents urged that
transmission was conducted in line with the directions by the Court of Appeal in the Maina
Kiai case. This process yielded the results that were Streamed onto the portal and which, were
not suciently impugned during the trial.
The decision of the voter at the primary locale of the election, which is the polling station, was
unchallenged.
How then can a process used to transmit those results for tallying upset the will of the
electorate?
It was not proved that the voters will during the conduct of elections, was so aected by any
irregularities cited so as to place this Court or the country in doubt as to what the result of the
election was. Challenges which are to be expected during the conduct of any election. However,
those challenges which occurred, (and in my opinion, none of which occurred deliberately or
in bad faith, and which fell particularly outside the remit of the voter and his/her will) – ought
not to supplant the voters exercise of their right of surage.
6. In summary, I respectfully disagree with the decision of the majority, and in accordance with
Section 26(2) of the Supreme Court Act, 2011, will issue my full dissenting Judgment within
21 days.
4. I now proceed to give the full rendition of my judgment, bearing the expounded reasons upon which
this dissent is founded.
5. I also adopt the comprehensive pillars analyzing the Petition, Supporting evidence, the Responses, and
the Parties submissions, including the opinion of amici curiae, contained in the dissenting Judgement
of my brother, Justice J.B Ojwang, SCJ.
B. Outline
6. This dissenting Judgement commences with an introduction about the nature of the Petition
culminating in my summarised dissenting Judgement delivered on September 1, 2014, exactly 14 days
after the Petition challenging the results of the Presidential Petition was initially led at the Supreme
Court Registry.
7. The starting point of my dissent is:
(1) The proper context of the jurisdiction of this court sitting as an election court;
(2) A thorough analysis of the remit of this jurisdiction leads to the conclusion that election causes
are right-centric in nature.
8. In totality, I analyse the petitioners case under the following additional considerations:
(3) Articles 81 and 86 of the Constitution
(4) The process of Transmission;
(5) Burden and Standard of proof;
(6) Weighing the Evidence adduced in Adavits;
(7) Access to Information Orders by the Court;
(8) The Evidence Submitted to the court pursuant to Section 12 of the Supreme Court Act, 2011;
(9) Section 83 of the Supreme Court Act and the question of Compliance;
(10) Preserving Kenyas electoral jurisprudence;
(11) Conclusion; and,
(12) Determination.
C. The Supreme CourtS Original Jurisdiction: Setting The Parameters
i. The Supreme Court as an election Court

9. The Jurisdiction of the Supreme Court to hear and determine questions as to the validity of a
presidential election is set out in Article 163 (3) (a) of the Constitution in the following terms:
163 (3) The Supreme Court shall have-
(a) exclusive original jurisdiction to hear and determine disputes relating to the elections
to the oce of President arising under Article 140;
In this regard, the Supreme Court constituted in the terms of Article 163(3)(a) discharges its mandate
as an election Court. Section 2 of the Elections Act, 2011 denes an "election court as follows:
An "election Court means the Supreme Court in exercise of the jurisdiction conferred upon
it by Article 163(3)(a) or the High Court in the exercise of the jurisdiction conferred upon
it by Article 165(3)(a) of the Constitution or the Resident Magistrates Court designated by
the Chief Justice in accordance with Section 75 of this Act;
10. According to the Blacks Law Dictionary, 8th ed (2004), "exclusive jurisdiction means:
“ A courts power to adjudicate an action or class of actions to the exclusion of all other
courts….
11. In the Raila Odinga case, this Court claried the bounds of its exclusive original jurisdiction as follows,
at paragraph 208:
[208] A Petitioner against the declaration of a candidate as President-elect, under Articles 163(3)(a)
and 140 of the Constitution as read together with the provisions of the Supreme Court Act, 2011
(Act No 7 of 2011) and the Supreme Court (Presidential Elections) Rules, 2013 (now 2017),
is required to present a specic, concise and focused claim which does not purport to extend
the Supreme Courts jurisdiction beyond the bounds set out in the Constitution. It follows that
the Court will only grant orders specic to the Presidential election. [Emphasis added]
12. The Supreme Court is therefore, the rst (original), only (exclusive) and nal resort for any party
challenging the election of any person to the Oce of the President. It determines presidential
election petitions to the exclusion of all other Courts. This jurisdiction is also limited in time. the
Constitution requires one to petition quickly and particularly. This restriction, on extent and time,
is not without basis. As decided in Raila Odinga & others v Independent Electoral & Boundaries
Commission, Supreme Court Petition No 5 of 2013 (The Raila 2013 case), the parties must present
a clear, concise case supported by cogent evidence. This jurisdiction even though limited in time and
scope, revolves around critical constitutional questions. The requirement for particularity is therefore
important to ensure that the case presented before the Court is properly proved (in line with the set
parameters of the burden and standard of proof).
ii. Election causes are right-centric and not form-centric

13. The peculiar nature of the Supreme Courts nality on interpretation of the Constitution and the law
and the central theme in elections, ie, the right to vote in free and fair elections, presents an inescapable
conclusion: the Supreme Court, as an election Court, is engaged by the parties in a right-centric cause
driven by evidence and in the terms of its decision in the case of Gatirau Peter Munya v Dickson
Mwenda Kithinji & 2 others, Civil Application No 5 of 2014 (the Munya 1 case), in making its
determination, the Court, must not disengage from the Constitution.
14. It is proper to emphasize that the Supreme Court in discharging its mandate as an election Court,
remains the precedent-setting forum in the country and its decisions must be carefully analysed to
ensure that a jurisprudential crisis or confusion does not ensue. Were that to happen, the Court would
have failed the Constitution and the people. These considerations have been emphasized by this Court
before. In the case of Aramat v Lempaka & others, Supreme Petition No 5 of 2014, (the Aramat case)
at paragraphs 88, 101 and 102, the Court held (by a majority):
(88) The context in which we must address the question of jurisdiction in the instant matter,
however, imports special permutations, and a special juridical and historical context that
calls for further proling to the concept. By the Constitution of Kenya, 2010 (Article 163), a
Supreme Court, with ultimate constitutional responsibility, and bearing binding authority in
questions of law, over all other Courts, has been established. The exclusive, dedicated role of
the Supreme Court under the Constitution takes several forms: for example, it has "original
jurisdiction to hear and determine disputes relating to the elections to the oce of President
[Article 163(3)(a)];
(101) We would make it clear in the instant case that, it is a responsibility vested in the Supreme Court
to interpret the Constitution with nality: and this remit entails that this Court determines
appropriately those situations in which it ought to resolve questions coming up before it,
in particular, where these have a direct bearing on the interpretation and application of the
Constitution. Besides, as the Supreme Court carries the overall responsibility [The Constitution
of Kenya, 2010, Article 163(7)] for providing guidance on matters of law for the States judicial
branch, it follows that its jurisdiction is an enlarged one, enabling it in all situations in which
it has been duly moved, to settle the law for the guidance of other Courts.
(102) The Supreme Courts jurisdiction in relation to electoral disputes is, in our opinion, broader
than that of the other superior Courts. We note in this regard that while the Court of Appeals
jurisdiction is based on Section 85A of the Elections Act, with its prescribed timelines, that
of the Supreme Court is broader and is founded on the generic empowerment of Article
163 of the Constitution, which confers an unlimited competence for the interpretation and
application of the Constitution; and this, read alongside the Supreme Court Act, 2011 (Act No
7 of 2011) illuminates the greater charge that is reposed in the Supreme Court, for determining
questions of constitutional character. [Emphasis added]
15. The thrust of the foregoing paragraphs can be summed up as follows: the Constitution is Kenyas
guiding Order. It has organized Kenyas governance character and infused accountable governance,
public service and responsible citizenship. The Judiciary bears the enviable, but extremely dicult
and rewarding duty of giving the Constitution, comprehensible interpretation that is stable, consistent,
predictable, certain and true to the sovereignty of the people. Undergirding this sovereignty is the
ability of every Kenyan to enjoy his/her full human-character guaranteed by an elaborate charter
on rights. A determination of a dispute akin to the one before us cannot therefore be mechanically
disposed of without paying due regard not just to the letter or spirit but also the conception of the
Constitution itself. At the core of the Constitution is sovereign will, at the soul of sovereign will are the
people, and central to the people are their rights.
16. What then is the complete description of an election cause within Kenyas constitutional system? An
answer lies in the inaugural, elaborate jurisprudence laid by this Court and applied by lower Courts
in a number of election cases.
In Moses Masika Wetangula v Musikari Nazi Kombo & 2 others, Supreme Court Petition No 12 of
2014 (the Wetangula case), this Court held, at paragraphs 107 and 112:
[107] The description of election petitions as causes sui generis, is in every respect apposite. An
election petition is a suit instituted for the purpose of contesting the validity of an election, or
disputing the return of a candidate, or claiming that the return of a candidate is vitiated on the
grounds of lack of qualication, corrupt practices, irregularity or other factor. Such petitions
rest on private political or other motivations, coalescing with broad public and local interests;
they teeter in their regulatory framework from the civil to the criminal mechanisms; and they
cut across a plurality of dispute-settlement typologies.
[112] The overriding objective of the Elections Act is to functionalize and promote the right to vote.
This requires a broad and liberal interpretation of the Act, so as to provide citizens with every
opportunity to vote, and to resolve any disputes emanating from the electioneering process.
The primary duty of the election Court is to give eect to the will of the electorate; and
consequently, the Court is to investigate the nature and extent of any election oence alleged in
an election petition. Accordingly, the happenings that touch on the due conduct of the election
process, come as proper items of agenda in the tasks of an election Court. [Emphasis supplied]
In George Mike Wanjohi v Steven Kariuki & 2 others, Supreme Court Petition No 2A of 2014, (the
Mike Wanjohi case) it was held, at paragraph 112:
112. [A]part from the priority attaching to the political and constitutional scheme for the election
of representatives of governance agencies, the weight of the peoples franchise - interest is far
too substantial to permit one ocial, or a couple of them, including the Returning ocer,
unilaterally to undo the voters verdict, without having the matter resolved according to law, by
the judicial organ of State. It is manifest to this court that an error regarding the electors nal
choice, if indeed there is one, raises vital issues of justice such as can only be resolved before the
courts of law. [Emphasis supplied]
17. An election cause is a right-centric cause. At the heart of a Petition challenging the results of a
presidential election is the right to vote in free and fair elections. This right is at the epicenter of
Kenyas democratic character as a Republican state. Interpretation and application of the constitutional
provisions touching on elections must therefore be read holistically with each provision reinforcing
the other. This approach has been consistently applied by other Courts in the region and embedded in
the theory of constitutional interpretation in our own jurisdiction. In Olum v The Attorney-General
of Uganda [2002] EA 508, this principle was enunciated thus:
"[T]he entire Constitution has to be read as an integrated whole and no particular provision
destroying the other but each sustaining the other. Constitutional provisions must be
construed as a whole in harmony with each other without insubordinating any one
provision to the other.
In Re Kenya National Human Rights Commission, Supreme Court Advisory Opinion Reference No
1 of 2012, this Court held as follows:
"It must mean interpreting the Constitution in context. It is the contextual analysis of a
constitutional provision, reading it alongside and against other provisions, so as to maintain
a rational explication of what the Constitution must be taken to mean in light of its history,
of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation
does not mean an unbridled extrapolation of discrete constitutional provisions into each
other, so as to arrive at a desired result. [Emphasis supplied]
iii. Evidence in an election Court

18. What then is the law on evidence to be presented in an Election Court? Evidence is an imperative of
the right to fair hearing. Article 50 (4) of the Constitution cautions that:
50 (4) Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of
Rights shall be excluded if the admission of that evidence would render the trial unfair, or
would otherwise be detrimental to the administration of justice.
19. Evidence is the epicenter of any trial. The nature of a presidential election petition does not displace the
basis of the law of evidence outlined in The Law of Evidence Act, Cap 80 of the laws of Kenya. Section
80 of the Elections Act, 2011 expresses that among the powers of an election Court in exercise of its
jurisdiction is: summoning and swearing in witnesses in the same manner, or as nearly as circumstance
admit, as in a trial by a Court in exercise of its civil jurisdiction. Article 163 (3)(a) proceedings before
this Court although regulated by the Supreme Court Act, 2011 and the attendant Presidential Election
Petition Rules, 2017, allow reliance on Adavit evidence. In order for that evidence to bear cogent
value, it must meet the demands of proof.
20. This Courts role in exercise of its exclusive original jurisdiction ought to be thorough fact-nding and
interpretation of the Constitution and the law in the terms set out in the foregoing paragraphs. In cases
of factual prerequisite such as this one, interpretation of the law devoid of complete and exhaustive
factual examination is by itself, an insucient basis upon which to make the nal determination
contemplated under Article 140(2) of the Constitution. The evidence adduced must be clear to show
that what was declared was not the result. Electoral processes have assumed a fair presumption of
correctness. To rebut this presumption requires proof to a high degree that the resulting declaration
is not trustworthy. This is drawn from the democratic legitimacy accorded to elections by the
Constitution. The test of invalidating an election must be a clear one. A new election should be
conducted only when voters have been completely prevented from accurately registering their intended
preference in numbers sucient to aect the outcome. A determination to hold a fresh election in
terms of Article 140(3) should only be made if the following questions are considered, analysed and
determined conclusively:
i. Was the nal outcome of the election the result of fraud, mistake or omission which precluded
the certied vote total from correctly aggregating all voters independent, non-coerced and non-
procured preferences?
ii. Is the outcome incapable of being trusted to reect the will of the people?
iii. Can a reliable outcome be determined in a manner other than holding a fresh election?
21. An attempt to displace elections without proper recourse to the stated case and evidence amounts
to an unfair dislocation of accrued rights under the Constitution- to the people and their elected
representatives. The Court must protect the rights of the candidate(s) and by the same stroke, ensure
that the rights of the electorate are not compromised. Only a clearly pleaded and proved case will
warrant voiding of an election.
22. The right to vote in free and fair elections is violated when a Court, without comprehensive
understanding and analysis of the evidence displaces the electorate by halting an election and deciding
the outcome itself. An election, unless clearly proven to have been conducted in gross violation of the
Constitution and the law, aecting the ultimate outcome, must never be taken away from the voters.
The electorate, by dint of Article 1 of the Constitution is entitled to be represented by men and women
of their choice. In resolving electoral disputes, the Judiciary must set upon this duty as a judicial, not a
political actor. In so doing, its guiding force must be proper exercise of judicial authority granted under
Article 159 of the Constitution. It must consider rights, not form.
23. On this basis, I now set upon the legal and factual analysis of my decision with close reference to the
pillars set out in the Judgement of my brother, Justice J.B Ojwang, SCJ.
D. Right-Centric or Form-Centric? Interpreting and Applying Article 38 of the Constitution of

Kenya, 2010: Which Way for the Supreme Court Sitting as an Election Court?
24. It is not in doubt that the Majority base their decision on an interpretation of Section 83 of the Elections
Act and in doing so they have read-in the provisions of Articles 81 and 86 of the Constitution. They state
that the electoral process has not met the requirements as listed in those Articles. In my opinion this
is a narrow and restrictive interpretation of the law. I nd that the Majority in doing so, limited itself
to operational and aspirational constitutional principles but failed to rstly; address the substratum
of the issue at hand- the grundnorm of Constitution- the sovereignty of the people and the centrality
of the people in the entire architecture of the 2010 Constitution; but secondly used a restrictive test in
assessing whether a claim that the right to vote had been violated in any way had been made.
25. Let me set out by reinforcing the essence of the voter, who bears the right of franchise. Justice Albie
Sachs aptly captured this essence in the case of August and Another v Electoral Commission and others
[1999] ZACC 3; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) (August):
“ Universal adult surage on a common voters roll is one of the foundational values of
our entire constitutional order. The achievement of the franchise has historically been
important both for the acquisition of the rights of full and eective citizenship by all South
Africans (read, Kenyans) regardless of race, and for the accomplishment of an all embracing
nationhood. The universality of the franchise is important not only for nationhood and
democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite
literally, it says that everybody counts. [Emphasis added]
26. The interpretation and application of the Bill of Rights must not be mechanical or limited by a Courts
interpretation of legislation. To favor legislation over the Constitution would be an aront to the
Supremacy of the Constitution, which reads:
Article 2.
1. This Constitution is the supreme law of the Republic and binds all persons and
all State organs at both levels of government.
2. No person may claim or exercise State authority except as authorised under

this Constitution.
3. The validity or legality of this Constitution is not subject to challenge by or

before any court or other State organ.
4. Any law, including customary law that is inconsistent with this Constitution
is void to the extent of the inconsistency, and any act or omission in
contravention of this Constitution is invalid.
5. The general rules of international law shall form part of the law of Kenya.
6. Any treaty or convention ratied by Kenya shall form part of the law of Kenya
under this Constitution.
The correct approach ought to be that espoused in the Canadian case of R v Big M Drug Mart Ltd
1 S.C.R. 295, 18 D.L.R. (4th) 321
The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an

analysis of the purpose of such a guarantee; it was to be understood, in other words, in the
light of the interests it was meant to protect.
In my view this analysis is to be undertaken, and the purpose of the right or freedom in
question is to be sought by reference to the character and larger objects of the Charter
itself, to the language chosen to articulate the specic right or freedom, to the historical
origins of the concept enshrined, and where applicable, to the meaning and purpose of the
other specic rights and freedoms with which it is associated within the text of the Charter.
The interpretation should be...a generous rather than legalistic one, aimed at fullling
the purpose of a guarantee and securing for individuals the full benet of the Charter's
protection.
27. The exercise of the sovereign power of the people in relation to the political processes of the State is to
be found rst in Article 1 which provides that all sovereign power belongs to the people of Kenya who
exercise their power directly or through their elected representatives and also delegate it to the three
arms of government at both national and county level. The second reference to this sovereign power
of the people is to be found in the Bill of Rights under Article 38(2) and (3) of the Constitution where
it is stated that:
38 (2) Every citizen has the right to free, fair and regular elections based on universal surage and the
free expression of the will of the electors for—
a. any elective public body or oce established under this Constitution; or
b. any oce of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions—
a. to be registered as a voter;
b. to vote by secret ballot in any election or referendum; and
c. to be a candidate for public oce, or oce within a political party of which the citizen
is a member and, if elected, to hold oce.
28. There cannot be any doubt at all that in interpreting and applying any provision of this Constitution,
the Elections Act and Regulations there-under, this Court must adopt an interpretation that promotes
the grundnorm in Article 1 and the right to vote in Article 38.
29. Articles 81 and 86 of the Constitution reinforce the right to vote elaborated under Article 38 of the
Constitution. These constitutional provisions must therefore be applied to this core right and not vice
versa. Articles 81 and 86 are to be facilitative of the fundamental rights under Article 38, in addition
to other provisions of the Constitution. In fact, there are many other Articles of the Constitution,
Legislation and Regulations whose purpose is intended to give eect to, facilitate and support the right
to vote as provided for under Article 38. In the application and implementation of those provisions –
the centrality of Article 38 as the primary purpose for their existence must never be lost.
30. This was the position elaborated in the case of Evans Kidero & others v Ferdinand Waititu & others,
Supreme Court Petition No 20 of 2014, (The Kidero case) this Court held, at paragraphs 137 and 138:
137. Chapter Seven of the Constitution is entitled "Representation of the People and bears the sub-
title"Electoral System and Process, with further sub-title "General Principles of the Electoral
System. Articles 81, 82, 83, 84, 85, 86 and 87 all fall under this Chapter. It is plain to us
that most of the provisions in these Articles are rendered in the form of principles• some
general, and others not so general. And, thus expressed, it is unavoidable that most of these
principles are not self-executing: which fact moves the judicial forum to centre-stage, as regards
interpretation and application.
138. These principles cannot crystallize into deliverables of public goods, such as those in the nature
of governance and elections, without further legislative action.
Thus, Article 82 (1) (d) provides as follows:
“ Parliament shall enact legislation to provide for•
……
a. the conduct of elections and referenda and the regulation and ecient
supervision of elections and referenda, including the nomination of
candidates for elections
2. Legislation required by clause (1) (d) shall ensure that voting at every election is•
a. simple;
b. transparent and;
c. takes into account the special needs of•
i. persons with disabilities and;
ii. other persons or groups with special needs. [Emphasis added]
31. A reading of the majority decision also appears to presume that the only test for ascertaining the
credibility of the election process, or more correctly for assessing any violation of the rights under
Article 38, lie in Articles 81 and 86. This is not the case. Articles 82 and 83 also go to the specics of the
electoral process that support the right under Article 38. Article 82 and 83 address the registration of
voters and 83 underlines the requirements of the voting exercise itself – as simple, accurate, and taking
into account those with special needs. Article 83(3) states clearly that
"administrative arrangements for the registration of voters and the conduct of elections shall
be designed to facilitate and shall not deny, an eligible citizen the rights to vote or stand for
election."
The upshot being that the test for assessing a violation claim under Article 38 must be more
comprehensive than the aspirational guidelines set under Articles 81 and 86. Cherry-picking
constitutional provisions to determine a right-centric cause on the basis of formal considerations - the
choice of form over rights - undermines a purposive approach to the interpretation and application
of the Constitution.
32. The Constitution in Article 259(1) also clearly sets out the framework of applicable principles while
interpreting the Constitution.
This Article provides that;
259 (1) This Constitution shall be interpreted in a manner that—
a. promotes its purposes, values and principles;
b. advances the rule of law, and the human rights and fundamental freedoms in the Bill
of Rights;
c. permits the development of the law; and
d. contributes to good governance.
(3). Every provision of this Constitution shall be construed according to the doctrine of
interpretation that the law is always speaking…. [Emphasis added]
32A. Further the Constitution provides under Article 20(3):
20(3) In applying a provision of the Bill of Rights, a Court shall-
a. develop the law to the extent that it does not give eect to a right or fundamental
freedom; and
b. adopt the interpretation that most favours the enforcement of a right or fundamental
freedom. [Emphasis]
In my opinion, the Majority has not given eect to the peoples right to franchise and have not
interpreted it broadly and in a manner that most favours its enforcement.
33. The case for the advancement of the Bill of Rights clearly must therefore be at the forefront of any
judicial determination under the Constitution of Kenya, 2010.
34. There is a more complex issue that must be addressed-Article 19 of the Bill of Rights, Chapter IV of
the Constitution states as follows:
Part 1—General provisions relating to the Bill of Rights
Rights and fundamental freedoms
2. The Bill of Rights is an integral part of Kenyas democratic state and is the
(1) framework for social, economic and cultural policies.
2. The purpose of recognising and protecting human rights and fundamental

freedoms is to preserve the dignity of individuals and communities and to
promote social justice and the realisation of the potential of all human beings.
3. The rights and fundamental freedoms in the Bill of Rights—
a. belong to each individual and are not granted by the State;
b. do not exclude other rights and fundamental freedoms not in the

Bill of Rights, but recognised or conferred by law, except to the
extent that they are inconsistent with this Chapter; and
c. are subject only to the limitations contemplated in this

Constitution. [Emphasis added]
35. If the rights under Article 38 may not be limited other than by a specic provision of the Constitution,
can an interpretation of Articles 81 and 86 purport to take the essence of those rights away from any
Kenyan? Where a voter has made his choice known, having been registered in accordance with Articles
82 and 83, 138(3) (a), having voted in accordance with Articles 81, 83 and his vote counted at the
polling station (Art 138(3) (c), and the result announced at the polling station in accordance with the
Constitution and the law - and the outcome is known and uncontested – then can a general principle
non-specic to any precise act – overturn that choice and undermine a fundamental right? Can an
operational aspect of an election (read as forming part of Art 81) cancel a result/outcome (read Art
38) that is unchallenged? And further, where in fact the election is not challenged as to the aspect
that the result/outcome (Art 38) has been violated? Can a claim that does not plead violation of a
fundamental right, extinguish the enjoyment or exercise of that right? Can it be argued that there are
two competing provisions of the Constitution: one provision guaranteeing the right and the other,
burdening the enjoyment of that right? And if this is the case how would one balance to ensure an
outcome that does not upset the will of the people?
36. We can draw lessons from the observations of Prof Rex Martin on the exposition of John Rawls Theory
of Justice, in his book Rawls and Rights, where he states:
“ The weight of a right is a determination, sometimes explicit and sometimes not, sometimes
quite exact and sometimes rather imprecise, of how it stands with respect to other normative
considerations and whether it would give way to them or they to it, in cases of conict .
37. Similarly, a scholar, Nur Kayacan, Derya in her paper, "How to resolve Conflicts Between Fundamental
Constitutional Rights, (Saar Blueprints) puts across an interesting point, with which I fully agree with,
that :
“ The discretion that the judges enjoy when applying the balancing method is a part of their
duty as the guardians of law. One general rule, which embraces all of the situations in which
a conict occurs and gives a common technique to resolve them all, cannot possibly be
formulated. Even if a single solution was to be formulated, it would not serve justice in each
situation, since every case has its own specic circumstances. Also the discretion of the judges
is not without any limits; they have to follow the principle of proportionality.
The answer to the question, how to resolve conicts between fundamental constitutional
rights, is, at the end quite simple. Balancing ...
38. Thus even if there may appear to be a perception that a competing rights situation exists – that is
between Article 38 and 81 and 86 - there must be a balancing and an application of proportionality
to eect a judicial outcome that serves the dictates of the Constitution. One must recognize that not
all claims will be equal before the law: some claims have been aorded a higher legal status and greater
protection than others. While there are many situations in which rights, principles, and values may
seem to conict or compete, when evaluating situations of competing rights, human rights, especially
those provided in a Bill of Rights and will usually hold a higher status than principles and values. This
rationale is further underlined by the architecture of our Constitution, which actually ring-fences the
Bill of Rights from amendment which may be made only through referendum by the people of Kenya
unlike the principles in Article 81 and 86, which may be amended by elected leaders in Parliament.
This plebiscite protection in itself - places the Bill of Rights - higher in the pecking order of competing
provisions in the Constitution. The principle therefore should complement the right not vice versa.
The principles in Article 81 and 86 therefore cannot trump the fundamental rights as provided for
under Article 38; and certainly they cannot undermine the provisions of Article 1 on the sovereignty
of the people. Further they ought not compete with all international treaties that provide and protect
the right to vote and to which Kenya is a signatory, and which are part and parcel of our constitutional
order under Article 2.
39. We can go further to draw from decisions of the Indian Supreme Court as relates to the conict
between the fundamental freedoms and the Directive principles in the India constitution. Harmony
between aspiration, reinforcing or guiding provisions and rights is however critical. In India the
Constitution provides for both fundamental rights and directive principles. The Indian Supreme Court
has, in a number of judgments, called these principles the "conscience of the Constitution and also as
the core of the Constitution. That Court has held that the courts can look at the Directive Principles for
the purpose of interpretation of the fundamental rights and adopt that interpretation which makes the
fundamental rights meaningful and ecacious. But more importantly the Indian Supreme Court has
pronounced itself on the instances where a conict between fundamental rights and directive principles
should arise. In State of Madras v Champakam Dorairajan AIR 1951 SC 226, the Supreme Court held
that the directive principles are not enforceable by court stating that the chapter on Fundamental rights
in the Constitution is sacrosanct and the directive principles have to conform to and run subsidiary to
the chapter on Fundamental Rights. Similarly in 1967, a bench of 11 judges of the Supreme Court in
Golak Nath v The State of Punjab AIR 1643, 1967 SCR (2) 762 (1967), found that fundamental Rights
cannot be abridged or diluted to implement the directive principles. This means that Fundamental
Rights were given superiority over the Directive principles.
40. The conclusion may therefore be drawn that fundamental rights constitute the foundation of the any
Constitution and any accompanying values and principles are to be complementary and not to detract
from the Constitution. The rights in Article 38 remain central to any election cause and it is claim
of the violation of those rights that ought to take center-stage in such a cause and not the form that
accompanies it in the periphery.
41. Having determined that election causes are right-centric in nature, and having discussed the centrality
of every citizens right to free, fair and regular elections based on universal surage and the free
expression of the will of the electors for any elective public body or oce established under the
Constitution, I now evaluate the alleged violation of Articles 81 and 86 of the Constitution of Kenya,
2010 and its eect upon the outcome of the presidential election.
E. The Alleged Violation of Articles 81 and 86 of the Constitution of Kenya, 2010 and Its Eect
Upon the Outcome of the Presidential Election.
i. The Case
42. The Petitioners averred that there were massive, systematic, systemic and deliberate non- compliance
with the Constitution and the law which contravened the principles of a free and fair election under
Article 81(e) of the Constitution as read together with Section 39, 44 and 44A of the Elections Act, 2011
and the Regulations thereunder. The Petitioners asserted that the relay and transmission of results
from Polling Stations to the Constituency and the National Tallying Centre was not simple, accurate,
veriable, secure, accountable, transparent and prompt contrary to the provisions of Article 86 of the
Constitution. The Petition elaborated that the non-compliance was:
On Forms 34A and 34B:
a. The data and information recorded in Forms 34A at the individual polling
stations were not accurately and transparently entered into the KIEMS Kits.
b. The data entered into the KIEMS Kits ought to have been accompanied by an
electronic picture or image of the prescribed Form 34A.
c. The Practice Manual verbally communicated and publicly demonstrated by

the 1st Respondent to the parties, stakeholders and observers demonstrated
that transmission of any data from the KIEMS kit was only possible if the
data was simultaneously accompanied by the image of the Form 34A. That
according to late ICT Manager of the 1st Respondent, Mr Chris Msando,
the submit button was programmed to function only when the data was
accompanied by the electronic image of Form 34A.
d. The results from over 10,000 polling stations were not accompanied by an
electronic image of Form 34A and that the results declared from these polling
stations represented approximately 5 million voters.
e. The data being publicly displayed by the 1st Respondent was not consistent
with the information on Forms 34A.
f. The 1st Respondent received in excess of 14,000 defective returns from polling
stations aecting over 7 million votes.
g. The information on Forms 34B did not correspond with that in the primary
Forms 34A making them inaccurate, unveriable and invalid.
h. Inconsistencies in Forms 34B accounted for at least 7 million votes.
i. At the time of declaring the result, the 1st Respondent did not have 187 Forms
34B.
j. The computation and tabulation of results in a signicant number of Forms

34B was not accurate, veriable and internally consistent.
k. The purported results in the 1st Respondents Forms 34B were materially
dierent from what the 1st Respondent publicly relayed and continued to
relay as at the time of ling in its website or portal
l. That the results in Forms 34B were inaccurate and had mathematical additions
in favour of the 3rd Respondent.
m. That some returns in a material number of polling stations were not in the
prescribed Forms 34A and 34B contrary to Regulations 79(2)(a) and 87(1)(a).
n. That Forms 34B bore fatal irregularities aecting 14,078 polling stations.
o. That a number of forms and returns were not signed, some forms did not
indicate names of the Returning Ocer, some did not bear the IEBC stamp,
some Forms 34A and 34B did not bear the signatures of the candidates agents
nor the reason for refusing to sign, some were signed by the same person
presiding in dierent polling stations.
p. In more than half of the Constituencies, the Returning Ocers failed to

indicate the number of Form 34As handed over to them as required under the
law and regulations. As such, it was impossible to authenticate and verify the
results given as the integrity of the forms had been put into question and the
forms were unknown to the law.
Alleged Fraud on the part of the 1st Respondent:
q. In numerous instances, the 1st Respondent selectively manipulated,

engineered and deliberately distorted the votes cast and counted in favour of
the Petitioners and inated those in favour of the 3rd Respondent, thereby
aecting the nal results tallied.
r. That the Presidential Election was marred and signicantly compromised by

intimidation and improper inuence or corruption contrary to Articles 81(e)
(ii) of the Constitution as read together with the Elections Act and Regulations
3 and 6 of the Electoral Code of Conduct.
s. That the 3rd respondent, with impunity, contravened the Rule of Law and
the principles of conduct of a free and fair election through the use of
intimidation, coercion of public ocers and improper inuence of voters
Vote counting
t. It was alleged that the votes cast in a signicant number of polling stations were
not counted, tabulated and accurately collated as required under Article 86(b)
and 86(c) of the Constitution as read together with the Elections Act, 2011.
The transmission process:
u. The respondents process of relaying and transmission of results from

polling stations to the Constituency Tallying Centres and National Tallying
Centre (NTC) was not simple, accurate, veriable, secure, accountable,
transparent, open and prompt. This substantially compromised and aected
the requirement of free and fair elections under Article 81(e) (iv) and (v) of
the Constitution
v The IEBC deliberately and/or negligently compromised the security of the

integrated electoral management system (KIEMS) and thereby exposed it to
unlawful interference by third parties.
ii. The evidence
43. The Petitioners relied on evidence borne in twelve depositions all sworn on the August 18, 2017 by:
(1) Raila A. Odinga,
(2) Stephen Kalonzo Musyoka,
(3) Dr Nyangasi Oduwo,
(4) George Kegoro,
(5) Benson Wasonga,
(6) Godfrey Osotsi,
(7) Ibrahim Mohamud,
(8) Mohamed Noor Barre,
(9) Moses Wamuru,
(10) Olga Karani,
(11) Aprielle Oichoe and
(12) Koitamet Ole Kina

and a certicate by Duncan Nunda certifying the authenticity of video and transcriptions attached to
Dr Nyangasi Oduwos Adavit. These depositions collectively support the case of the Petitioner and
were led on time, in line with the dictates of the Constitution and the Supreme Court (Presidential
Election) Rules, 2017. This Evidence, together with a complete record of the responses is contained in
the dissenting opinion of the Hon Justice JB Ojwang, SCJ.
iii. Analysis
44. The pertinent issues for consideration in this regard, in light of the pleadings, the evidence and
submissions ought to evaluate the provisions of Articles 81 and 86 of the Constitution in the broad
scheme of electoral prerequisites mandated by the Constitution and in light of Article 38 of the
Constitution. Article 81 outlines the General Principles of the electoral system. Kenyas electoral system
is instituted on the basis of multi-party democracy founded on the National Values and Principles
outlined under Article 10 of the Constitution. These values include patriotism, national unity, sharing
and devolution of power, the rule of law, democracy and participation of the people, human dignity,
equity, equality, social justice, inclusiveness, human rights, non-discrimination and protection of the
marginalized, good governance, integrity, accountability, transparency and sustainable development.
Most importantly, the Constitution provides a formula for the election of the President (more than half
of all the votes cast and at least twenty- ve percent of the votes cast in each of more than half of the
Counties) [Art. 138(4)].
For the other ve elective positions: Governor, Senator, Member of the National Assembly, Woman
Representative to the National Assembly, and Member of the County Assembly, the applicable system
is rst-past-the post i.e. the person with the most number of votes in the election.
45. The approach that a Court, keen to develop all the parameter of social order ordained by the
Constitution is the one taken by this court In the Matter of the Principle of Gender Representation in
the National Assembly and the Senate (Re Gender), Supreme Court Application No 2 of 2012, at
paragraphs. 26 and 54:
(26) The forthcoming general elections are not only the most important since independence,
but are complex and novel in many ways. The elections come in the context of the rst
progressive, public-welfare-oriented, historic Constitution which embodies the peoples hopes
and aspirations. Not only are these elections one of the vital processes instituted under
the Constitution, but they constitute the rst act of establishing a whole set of permanent
governance organs. Clearly, any ambivalence or uncertainty in the path of such crucial elections
must, as a matter of public interest, be resolved in time:
(54) Certain provisions of the Constitution of Kenya have to be perceived in the context of such
variable ground-situations, and of such open texture in the scope for necessary public actions.
A consideration of dierent Constitutions shows that they are often written in dierent
styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as
regards express safeguards and public commitment. But the Kenyan Constitution fuses this
approach with declarations of general principles and statements of policy. Such principles
or policy declarations signify a value system, an ethos, a culture, or a political environment
within which the citizens aspire to conduct their aairs and to interact among themselves
and with their public institutions. Where a Constitution takes such a fused form in its terms,
we believe, a Court of law ought to keep an open mind while interpreting its provisions.
In such circumstances, we are inclined in favour of an interpretation that contributes to the
development of both the prescribed norm and the declared principle or policy; and care should
be taken not to substitute one for the other. In our opinion, a norm of the kind in question
herein, should be interpreted in such a manner as to contribute to the enhancement and
delineation of the relevant principle, while a principle should be so interpreted as to contribute
to the clarication of the content and elements of the norm.
46. The electoral system and process is therefore discernible from a holistic reading of the Constitution,
particularly, Chapters Seven, [Representation of the People], Eight [The Legislature] and Nine [The
Executive]. The General Principles under Article 81, which in my view are qualitative, are infused in
the entire fabric of these Chapters and their resulting Legislation are concretized by other provisions
of the Constitution as follows.
a. Freedom of citizens to exercise their political rights is provided under Article 38 of the
Constitution,
b. Not more than two-thirds of the members of elective public bodies shall be of the same gender-
Article 10, 27(8), 38, 56 (a), 82, 90, 91, 100.
c. Fair representation of persons with disabilities- Article 54, 56, 82
d. Universal Surage based on the aspiration for fair representation and equality of the vote-
Article 10 and 38
e. Free and fair elections, which are
i. By secret ballot-Article 38
ii. Conducted by an independent body-Article 10 and 88
iii. Free from violence, intimidation, improper inuence or corruption-Article 10,
iv Transparent-Article 10
v Administered in an impartial, neutral, ecient, accurate and accountable manner-
Article 10, 82,83, 88
47. This collectivity and interlocking nature of constitutional provisions in the scheme of rights, values,
principles and administrative directives are then infused into the Elections Act and Regulations there-
under and in determining claims of commission or omission in electoral disputes, a Court must
consider:
(a) The nature of the commission or omission, in general;
(b) The source of such omission or commission;
(c) Foreseeability and mitigation;i.e. could the commission or omission be foretold? Were there
steps to avert it?;
(d) The eect of the commission or omission on a right, a duty or the consequence of a duty
thereof (such as eect upon the result of an election);
(e) The eect of the commission or omission on the individual and the collective;
(f) Possible remedies and directions.
48. The rationale of these considerations may be drawn from the Mike Wanjohi case at paragraph 110:
[110] By the design of the general principles of the electoral system, and of voting, in Articles 81 and
86 the Constitution, it is envisaged that no electoral malpractice or impropriety will occur that
impairs the conduct of elections. This is the basis for the public expectation that elections are
valid, until the contrary is shown, through a recognized legal mechanism founded in law or
the Constitution. Any contests as to the credibility, fairness or integrity of elections, belongs
to no other forum than the Courts. The charge of commission of administrative error, fraud,
deliberate misconduct, or some element of corrupt practice in elections, are questions that go
to the root of the validity of elections and which, if apparent subsequent to the declaration
of results, are expressly excluded from the scope of the dispute-resolution powers of the IEBC
under Article 88(4)(e). [Emphasis added]
49. Article 86 on the other hand bears a strict quantitative language regulating voting at an election. This
Article requires the voting method employed to be simple, accurate, veriable, secure, accountable
and transparent. The Petitioners claim is that the results from the polling stations, the Constituency
Tallying Centres could not be veried by their agents at the National Tallying Centre. The process
of verication is not a two-step process. Verication in a Presidential election is a continuous process
traceable from the date of registration of voters to the determination of a Presidential election
petition in an election court. In other words, the plurality of persons engaged in the conduct of an
election, including the ultimate determination of that elections validity, are all agents of verication in
ascertaining the credibility of an election. To examine the integrity of the election, the election Court
is obliged to consider all the relevant steps of the verication process. We shall examine the role of each
one.
The Agents of Verication
(i) The IEBC

50. The Commission is established under Article 88 of the Constitution and mandated to conduct and
supervise elections to any elective oce established by the Constitution, including: the continuous
registration of voters, the regular revision of the voters roll, and facilitation of the observation,
monitoring and evaluation of the elections. Section 4 of the Independent Electoral and Boundaries
Commission Act, No 9 of 2011 outlines the powers and functions of the Commission in the language
of Article 88, with the addition of deployment of appropriate technology and approaches in the
performance of its functions [Sec 4(m)]. The Commission is bound by the principles of the electoral
system as outlined under Article 81 (Sec 25). The Commission is also mandated to subject the register
of voters to an audit at least six months before a general election (Sec 8A of the Elections Act). It is also
mandated to test, verify and deploy technology at least 60 days before a general election. [(Sec. 44(4)(b)]
(ii) The Public

51. Section 6 of the Elections Act mandates the Commission to avail the register of voters to be inspected by
the public at all times for purposes of rectifying the particulars therein. Verication of ones registration
details, including biometric data, is therefore a critical part of verication essential to the conduct of
an election and enjoyment of the right to vote. The Commission is also mandated to open the Register
for inspection by the public, ninety days from the date of the notice of a general election. This assures
the public of the correctness of the registration details entered into the register and guarantees certain
key components of the right to vote under Article 38. This process was undertaken in the months of
May and June, 2017.
(iii) Candidates or Agents

52. Section 30 of the Elections Act empowers a political party, or a nominated agent, and an independent
candidate to nominate one agent per polling station. Regulations 69, 70, 73,74,76, 77,79, 80, 83, 85
demonstrate that candidates and/or their agents are an integral part of the electoral process.
(iv) Political Parties

53. They are permitted under the regulations to observe the process of registration of voters under the
registration of voters regulations
(v) Constituency Returning Ocers

54. Section 39 of the Elections Act mandates the Commission to appoint Constituency Returning Ocers
to be responsible for collating and announcing the results from the polling stations in the constituency
for the election of the President and submitting the collated results for the election to the national
tallying center.
(vi) Presiding Ocers

55. These ocers are appointed subject to Regulation 5 (1A) of the Elections (General) Regulations, 2012.
They are in charge of the entire process at the polling stations to ensure voting is done in accordance
with the law and to ensure that counting of the votes at closure of polling, is done properly.
(vii) Representatives of electronic and print media accredited by the Commission

56. This accreditation is specically provided for under regulation 95 to allow media access and cover to
the electoral process. All accredited observers and media are permitted into the Polling stations on the
basis of Regulation 62 (1)(g) of the Elections (General Regulations) 2012. They are allowed to attend
the counting of votes pursuant to Regulation 74(4)(f) and the tallying venue (Reg. 83) and Reg. (85)
(viii). Observers: Local and international representatives accredited by the Commission.
56A. These persons or organizations are accredited to observe the election under Section 42 of the Elections
Act and more importantly are required to submit their ocial reports to the Commission under
regulation 94 (6). The reports so led therefore have a formal and ocial status.
57. All the international observers who observed the General elections termed it as free and fair. There are
fundamental questions to be considered: What was the import of their reports regarding the fairness of
the election? What is a free and fair election? What did the election observers consider? International
election Observers are bound by Declaration of Principles for International Election Observation.
Declaration 4 denes International election observation as:
The systematic, comprehensive and accurate gathering of information concerning the

laws, processes and institutions related to the conduct of elections and other factors
concerning the overall electoral environment; the impartial and professional analysis
of such information; and the drawing of conclusions about the character of electoral
processes based on the highest standards for accuracy of information and impartiality of
analysis. International election observation should, when possible, oer recommendations
for improving the integrity and eectiveness of electoral and related processes, while
not interfering in and thus hindering such processes. International election observation
missions are: organized eorts of intergovernmental and international nongovernmental
organizations and associations to conduct international election observation.
58. Despite not having a universally acceptable denition of a free and fair election, there are certain
common attributes to that description. They were aptly expressed by the constitutional Court of
South Africa in the case of Kham and Others v Electoral Commission and Another (CCT64/15) [2015]
ZACC 37; 2016 (2) BCLR 157 (CC); 2016 (2) SA 338 (CC).
(34) There is no internationally accepted denition of the term"free and fair elections. Whether
any election can be so characterised must always be assessed in context. Ultimately it involves a
value judgement. The following elements can be distilled as being of fundamental importance
to the conduct of free and fair elections. First, every person who is entitled to vote should, if
possible, be registered to do so. Second, no one who is not entitled to vote should be permitted
to do so. Third, insofar as elections have a territorial component, as is the case with municipal
elections where candidates are in the rst instance elected to represent particular wards, the
registration of voters must be undertaken in such a way as to ensure that only voters in that
particular area (ward) are registered and permitted to vote. Fourth, the Constitution protects
not only the act of voting and the outcome of elections, but also the right to participate in
elections as a candidate and to seek public oce.
In New National Party of South Africa v Government of the Republic of South Africa and Others [1999]
ZACC 5; 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC) (New National Party) the Court held,
at para 12.
(25) There is even a shift among international observers towards abandoning the "free and fair
standard and to ask instead whether the election is a legitimate expression of the will of the
people or properly reects the wishes of the people. In response to a question from the Swedish
Ministry of Foreign Aairs regarding this shift in the public discourse over elections, the ACE
Electoral Knowledge Network said:
[A] shift has indeed taken place in the discourse of terms used to characterize the
conduct of elections, and that consequently there are fewer references to elections as
"free and fair. This shift was seen as a trend which began in the 1990s, when elections
that were described as "free and fair at the same time could be seen by analysts to lack
integrity, and it was also predicted to become a more widespread trend in the future.
Moreover, one [Practitioners Network] member expected that the trend would go
further as countries engage with new elections related technologies.
Behind the shift in discourse lies a rising awareness among analysts that election
observation should be less of a thumbs up/thumbs down judgement on an election-
day event, and increasingly an eort to monitor and evaluate the process of an
election, against international obligations voluntarily undertaken by countries.
iii. The Election Court

59. Let me reiterate that Kenyas electoral system is instituted on the basis of multi-party democracy
founded on the National Values and Principles outlined under Article 10 of the Constitution. The
General principles of the Electoral System therefore and the interlocking constitutional provisions,
including Article 81 are engaged in an exercise of sovereign guardianship. Therefore, the Supreme
Court by dint of its Jurisdiction is the nal verifying Agency, if called upon to do so, in a Presidential
election petition. This duty is enabled by the Supreme Courts inherent powers, as an election court,
to Order: (a) scrutiny (b) recount (c) re-tally (d) discovery of documents (e) inspection of ballots (f)
Orders that facilitate the Court to establish the peoples sovereign will.
60. The Supreme Court as an Election court is empowered by Article 138 (3)(c), 140 and 163 (3)(a) of
the Constitution and also under Sections 2, 80, 82 and 85 of the Elections Act, 2011. This is critical to
meet the constitutional imperatives set upon the Court and the Electoral body by the Constitution.
An election Court must be sure that there is a solid, not imagined; a proved, not alleged; case for
invalidating an election. The South African Constitutional Court, in Kham and Others v Electoral
Commission and Another (CCT64/15) [2015] ZACC 37; 2016 (2) BCLR 157 (CC); 2016 (2) SA
338 (CC) remarked, and I am fully persuaded by their opinion:
(91) It is undesirable to articulate a general test expressed in language dierent from that of the
Constitution, as that may be misleading. The Court must give full weight to the constitutional
commitment to free and fair elections and the safeguard it provides of the right and ability of
all who so wish to oer themselves for election to public oce. It is essential to hold the IEC to
the high standards that its constitutional duties impose upon it. It is insucient for the Court
to say that it has a doubt, or a feeling of disquiet, or is uncomfortable about the freedom and
fairness of the election. It must be satised on all the evidence placed before it that there are
real – not speculative or imaginary – grounds for concluding that they were not free and fair.
What are the stages in the Process of Verication?

61. Regulation 68 provides that ballot papers shall:
a. Contain the name and symbol of the candidate validly elected
b. Contain a photograph of the candidate where applicable
c. Be capable of being folded up
d. Have a serial number, or combination of letter and number, printed on the front and;
e. Have attached a counterfoil with the same number or combination printed thereon.
These features allow the candidates or agents present at the polling station to inspect the ballot papers
provided for use at the polling station.
62. The voting procedure outlined under Regulation 69 contains core components of verication which
are complemented by the requirements of inspection and verication of the voters register.
Regulation 69. Voting Procedure
1. Before issuing a ballot paper to a voter, an election ocial shall—
a. require the voter to produce an identication document which shall be the same
document used at the time of registration as a voter;
b. ascertain that the voter has not voted in that election;
c. call out the number and name of the voter as stated in the polling station
register;
d. require the voter to place his or her ngers on the ngerprint scanner and cross out the
name of the voter from the printed copy register once the image has been retrieved;
e. in case the electronic voter identication device fails to identify a voter the presiding
ocer shall—
i. invite the agents and candidates in the station to witness that the voter cannot
be identied using the device;
ii. complete verication Form 32A in the presence of agents and candidates;
iii. identify the voter using the printed Register of voters; and
iv once identied proceed to issue the voter with the ballot paper to vote; (f)
deleted by L.N. 72/2017, r. 31(c); (g) deleted by L.N. 72/2017, r. 31(c).
2. A voter shall, in a multiple election, be issued with the ballot papers for all elections therein at
the same time and shall after receiving the ballot papers—
a. cast his or her votes in accordance with regulation 70 without undue delay;
b. submit to having one nger as prescribed by the Commission immersed, dipped or

marked in ink of a distinctive colour which, so far as is possible, is suciently indelible
to leave a mark for the period of the election;
c. where a voter has no nger, make a mark on the next most suitable part of the body; and
d. upon collecting his or her identication documents, immediately leave the polling
station.
3. A person who knowingly fails to place a ballot paper issued to him or her (not being a spoilt
ballot paper) into a ballot box before leaving the place where the box is situated commits an
oence under the Act.
4. An election ocer who deliberately refuses to stamp any ballot paper commits an oence.
5. The presiding ocer may, where a voter so requests, explain the voting procedure to such voter.
[Emphasis added]
63. At the close of polling, a presiding oce is supposed to indicate in a polling diary, a written statement
of-
a. the number of ballot papers issued to him or her under regulation 61;
b. the number of ballot papers, other than spoilt ballot papers, issued to voters;
c. the number of spoilt ballot papers; and
d. the number of ballot papers remaining unused.

Then in the presence of the candidate or agents, seal, in separate tamper proof envelopes-
a. the spoilt ballot papers, if any;
b. the marked copy register, where necessary;
c. the counterfoils of the used ballot papers; and
d. the statement specied in sub-regulations
64. These items are then sealed by the presiding ocer with the seal of the Commission and that of the
candidate or agent (if they wish to do so) and then delivered together with the ballot boxes, to the
returning ocer. These items allow the examination of election materials at any stage of the election,
permissible by law, for purposes of verication.
65. The Supreme Court of India has previously laid a basis upon which an election Court may lift the veil
of secrecy in a ballot where a case has been made out by the Petitioner to do so. In Jitendra Bahadur
Singh v Krishna Behari and others [1969] INSC 176; AIR 1970 SC 276 an elector challenged the
validity of the election of the appellant to Lok Sabha. By the order dated May 21, 1968, the High Court
permitted the Election Petitioner to inspect the packets of Ballot Papers containing the accepted as well
as the rejected votes of the candidates. The said order passed by the High Court was impugned before
the Supreme Court. The Supreme Court held, at paragraphs 7 and 8:
7. The importance of maintaining the secrecy of ballot papers and the circumstances under which
that secrecy can be violated has been considered by this Court in several cases. In particular we
may refer to the decisions of this Court in Ram Sewak Yadav v Hussain Kamil Kidwai, 1964-6
SCR 238 [1964] INSC 6; (AIR 1964 SC 1249) and Dr Jagjit Singh v Giani Kartar Singh, AIR
1966 SC 773. These and other decisions of this Court and of the High Courts have laid down
certain basic requirements to be satised before an election tribunal can permit the inspection
of ballot papers. They are:
(1) that the petition for setting aside the election must contain an adequate statement of
the material facts on which the petitioner relies in support of his case and
(2) the tribunal must be prima facie satised that in order to decide the dispute and to do
complete justice between the parties, inspection of the ballot papers is necessary.
8. The trial court was of the opinion that if an election petitioner in his election petition gives
some gures as to the rejection of valid votes and acceptance of invalid votes, the same must
not be considered as an adequate statement of material facts. In the instant case apart from
giving certain gures whether true or imaginary, the petitioner has not disclosed in the petition
the basis on which he arrived at those gures. His bald assertion that he got those gures from
the counting agents of the congress nominee cannot aord the necessary basis. He did not
say in the petition who those workers were and what is the basis of their information. It is
not his case that they maintained any notes or that he examined their notes, if there were any.
The material facts required to be stated are those facts which can be considered as materials
supporting the allegations made. In other words, they must be such facts as to aord a basis
for the allegations made in the petition. …… This Court in insisting that the election petitioner
should state in the petition the material facts was referring to a point of substance and not
of mere form. Unfortunately, the trial court has mistaken the form for the substance. The
material facts disclosed by the petitioner must aord an adequate basis for the allegations made.
[Emphasis added]
66. The preservation of election material for a period of three years is also an enabler of the verication
process. In cases where a Court is in grave doubt as to the outcome of the election, as the Majority in this
case decided they were, the ballots exist to enable a nal inspection/verication process by an election
Court. The people speak through the ballot and the ballots, once marked and cast, in turn, speak for
themselves anonymous of the voter, preserving the principle of secrecy under Article 38 (3)(b) of the
Constitution. Indias long constitutional tradition has given the Supreme Court an opportunity to reign
in on the importance of ballots in verifying the result of the election when in doubt. In Narendra
Madivalapa Kheni v Manikarao Patil and Others, Supreme Court Civil Appeal No 1114 of 1976 :
The ballots are alive and available and speak best. Why, then, hazard a verdict on imsy
foundation of oral evidence rendered by interested parties? The vanquished candidate's ipse
dixit or the victor's vague expectations of voters' loyalty – the grounds relied on – are shifting
sands to build a rm nding upon, knowing how notorious is the cute art of double-crossing
and defection in electoral politics and how undependable the testimonial lips of partisans
can be unless authenticated by surer corroboration. Chancy credulity must be tempered by
critical appraisal, especially when the return by the electoral process is to be overturned by
unsafe forensic guesses. And where the ground for recount has been fairly laid by testimony,
and the ballot papers, which bear clinching proof on their bosoms, are at hand, they are
the best evidence to be looked into. No party can run away from their indelible truth and
we wonder why the learned Judge avoided the obvious and resorted to the risky. May be,
he thought reopening and recount of ballots may undo the secrecy of the poll. We are sure
that the correct course in the circumstances of this case is to send for and scrutinize the 16
ballots for the limited purpose of discovering for whom, how many of the invalid sixteen
have been cast. Secrecy of ballot shall be maintained when scrutiny is conducted and only
that part which reveals the vote (not the persons who voted) shall be open for inspection.
[Emphasis added]
67. The elaborate process of counting votes outlined under Regulation 76 guarantees several things:
(i) that vote counting is systematic, transparent (in the presence of candidates or agents),
(ii) veriable-the presiding ocer maintains a record of the count in a tallying sheet in Form 33.
68. After completing the count, Regulation 79 mandates the presiding ocer, the candidates or agents to
sign the declaration in respect of the elections. Pursuant to Regulation 79 (2A), the presiding ocer
shall-
The presiding ocer shall—
a. immediately announce the results of the voting at the polling station before communicating
the results to the returning ocer;
b. request each of the candidates or agents present to append his or her signature;
c. provide each political party, candidate, or their agent with a copy of the declaration of the
results; and
d. ax a copy of the declaration of the results at the public entrance to the polling station or at
any place convenient and accessible to the public at the polling station. [Emphasis Added]
This allows candidates or agents to verify the tally of these results at the Constituency Tallying Centre
and to raise any objection to any manipulation or change of results. This is in line with the principle
in the Joho case that results at the polling station are nal and any challenge to these results can only be
before a Court of law. Signatures by the Candidates or agents are central to the declaration that where
not provided, a record of the reasons for failure to sign shall be provided either by the candidate or
agent [Reg. 79(3)], or by the presiding ocer [Reg. 79 (4)]. Failure by a candidate or agent to sign the
declaration, shall not, by itself, invalidate the results announced [Reg. 79(6)]. The presiding ocer is
also required to record the absence of any candidate or agent [Reg. 79(5)]. The absence of a candidate or
agent at the signing of declaration shall also not of itself, invalidate the results announced [Reg 79 (7)].
69. An added layer of verication is provided under Regulation 80 where a candidate or agent after
counting is completed may require the presiding ocer to have the votes rechecked and recounted. The
presiding ocer may also, on their own initiative have the votes recounted. This regulation is couched
as a limited right, to be enjoyed by the candidates or agents at most, twice.
70. The importance of these processes bear credence to a careful consideration of the history of electoral
practice in Kenya as was highlighted by Mutunga CJ & P (as he then was) in his concurring opinion in
the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & Others, S.C. Petition No 2B of 2014;
[2014] eKLR [Munya 2] at paragraph 235, 247, 248, 249 and 250:
(235) The emphasis on free and fair elections, through an electoral system that is simple, accurate,
veriable, secure, accountable and transparent, in Articles 81(e) and 86 of the Constitution,
has a rich Kenyan historical, economic, social, political, and cultural context. Article 86(b),
for example, provides that the votes cast are to be counted, tabulated, and results announced
promptly by the presiding ocer at each polling station. This is because our electoral history is
rife with malpractices that occur during the transportation of ballot boxes from polling stations
to constituency counting-centres. It is therefore no coincidence that many of the petitions led
in the High Court, before the promulgation of the 2010 Constitution, gave lurid details of the
stung of ballot boxes, or discarding of them en route to the constituency counting-centre.
At the constituency counting- centre itself, votes disappeared when lights, either by design,
negligence, or power- outage, went o. Our elections were therefore not free, fair and peaceful
(see Charles Hornsby, Kenya: A History Since Independence (I.B. Tauris, 2013)). [Emphasis
added]
247. Constitutional provisions are by themselves not enough. The duty-bearers, be they individual
voters, political parties, agents, the media, IEBC, the Registrar of Political Parties, the
constitutional Commissions, the arms of the State, must all invest in emancipating and
protecting the vote.
Once the Constitution gives citizens the right to vote, the freedom to choose, and conditions are
created for the realization of that right, it is not the business of the Court to aid the indolent. If
party agents are required to be present, sign statutory forms, and undertake any other legitimate
duty that is imposed upon them as part of the political process in an election, then they are
under obligation to do it. To fail to do so is not only to fail ones party, but also to fail our
democracy. The Courts must frown upon any such inaction, reluctance, or delay.
248. The election is rst and foremost the citizens election. Every Kenyan must protect his or her
right to vote• the right to participate in the political aairs of the nation. It is upon exercising
all the rights which the Constitution bestows upon the citizen, that she or he can claim the
sovereign power that she or he donates to her or his representative.
249. It is, therefore, time for us to develop our election-petition litigation: we must depart from the
current practice in which a petitioner pleads 30 grounds for challenging an election, but only
proers cogent evidence for 3. A candidate, or her agent, cannot abscond duty from a polling
station, and then ask the Court to overturn the election because of her failure to sign a statutory
form. Every party in an election needs to pull their own weight, to ensure that the ideals in
Article 86 are achieved: that we shall once and for all have simple, accurate, veriable, secure,
accountable, transparent elections. The election belongs to everybody, and it is, therefore, in
everybodys collective interest, and in everybodys collective and solemn duty, to safeguard it.
250. Given the strict electoral timelines in our Constitution, it is clear elections, will result in cogent
grounds upon which election results are challenged. We will start seeing candidates conceding
defeat in elections because they have been free and fair. We will see electoral litigation that may
be ended through consent of the parties because they agree that the grounds upon which the
election results were based, are solid and not frivolous. It is not hard to imagine that one day
it will be possible, because of the vigilance of the citizens and all electoral stakeholders, to have
elections that will be free and fair, and Courts will no longer be involved in the settlement of
electoral disputes. [Emphasis supplied]
71. The next stage of verication is the process of tallying outlined under Regulation 83. The Returning
Ocer at the Constituency is mandated to collate and publicly announce the results from each polling
station in the presence of candidates, agents and observers if present.
72. Regulation 81 is important because it preserves the election material for reference by an election Court,
where applicable and which in my opinion, is the nal verication avenue.
Regulation 81. Sealing of ballot papers by presiding ocer
1. Upon completion of a count, including a recount, the presiding ocer shall seal in each
respective ballot box—
a. valid votes;
b. rejected ballots sealed in a tamperproof envelope;
c. unused ballot papers sealed in a tamperproof envelope; (d) counterfoils of used ballot
papers sealed in a tamperproof envelope;
e. copy of election results declaration forms; and
e. stray ballot papers in a tamperproof envelope.
2. The presiding ocer shall deliver, to the returning ocer—
a. the sealed ballot boxes;
b. the statements made under regulations 78 and 79;
c. copy of the Register of Voters; and
d. Polling station diary. [Emphasis supplied]
73. Verication therefore is an exercise that comprises the entire electoral process commencing from
registration of voters, inspection of the voters Register, verication of registration, verication of an
electors details where the electronic identication fails, audit of the Register, identication of voters,
presence of candidates, agents, accredited observers and media, the process of counting and the limited
right of recount, signing the declaration forms and the entitlement of candidates or agents to a copy,
displaying the declaration of results for access by the public, sealing of ballot boxes and handing-over of
election materials, the tallying process and the right to challenge the declaration of results in an election
Court. All these processes activate several inbuilt principles of the electoral system under Article 81 of
the Constitution. They also provide an opportunity for electoral quality assurance, aptly described in
the cited excerpt from the concurring opinion of Mutunga CJ & P (as he then was) in the Kidero case.
The hierarchy is that any shortfalls in the preceding process can be detected in a consequent process
forming a basis for a pre-election or post-election dispute.
74. It is however to be observed that a proper test for verication of an electoral process must always
prioritize the primary instrument for Declaration of the result or outcome of the voters choice. The
voter is identied at the Polling station; he votes at the polling station, ballots are counted at the polling
station. The agents, candidates, observers are allowed access into the polling stations to verify the inner
sanctum of the voice of the electorate - the altar of the voters choice. What happens there is what
determines the parameters of verication. Any doubt as to the credibility or integrity of the election
must be tested against the various layers of verication, including the election material in the custody
of the Returning Ocer. A single want of form in this elaborate scheme of verication cannot be a
basis for nullifying a Presidential Election.
F. Transmission
75. At the heart of transmission was the application of the directions by the Court of Appeal in the Maina
Kiai case. Before delving into the primary (Manual) and the complementary (electronic) modes of
result transmission, I will revisit this decision and its bearing on the conduct of future elections.
The Case
i. The Petitioners Submissions

76. At paragraph 67 of the Petitioners written submissions, it was urged that the determination of the
Court of Appeal in the Maina Kiai case was that a polling station was the nal point of declaration
of Presidential Election results. The Petitioners contended that the 1st Respondent however, went
contrary to this determination by: declaring the nal results of the Presidential Election at the County;
failing to electronically collate, tally and transmit the results accurately; allowing transmission and
display of unveried results not provided for in law; posting contradictory and ever changing results
in Forms 34A and 34B in the portal; and declaring nal results of the Presidential elections on 11th
August, 2017 before receiving results from all the polling stations.
77. According to the Petitioners, the only lawful, credible and secure way to conduct, tally and transmit
the 2017 Presidential Election results was as provided under Section 39(1C) of the Elections Act, 2011
i.e. electronic transmission in the prescribed Forms and in a prompt and ecient manner. It was the
Petitioners submission that the Court of Appeal in the Maina Kiai case armed the use of information
technology to guarantee the accuracy and integrity of election results and at pages 70-71 of their
judgment, determined thus:
“ We are satised that the electronic transmission of the already tabulated results from the
polling station is a critical way of safeguarding the accuracy of the outcome of the elections
The electronic transmission of results was intended to cure the mischief that all returning
ocers from each of the 290 constituencies and 47 county returning ocers troop to
Nairobi by whatever means of transport, carrying in hard copy the presidential results which
they had announced at their respective constituency tallying centres. The other fear was that
some returning ocer would in the process tamper with the announced result.
ii. The Responses
(a) The 1st and 2nd Respondents
78. Counsel for the 1st and 2nd Respondents made concurring arguments on this issue. The written
submissions of the 1st Respondent, summarized the litigation logic of the Maina Kiai case as an
appeal against the decision by the High Court in Constitutional Petition No 207 of 2016 seeking the
following Orders:
a. A declaratory Order that Sections 39 (2) & (3) of the Elections Act, 2011, are contrary to the
provisions of Articles 86 and 138(2) of the Constitution and therefore, null and void;
b. A declaratory Order that Regulations 83(2), 84(1) and 87(2) of the Elections (General)
Regulations, 2012 are unconstitutional and contrary to Articles 86(b)(c) and 138(2) of the
Constitution and therefore null and void;
c. A declaration that respective constituency returning ocers are the persons responsible for the
conduct and declaration of constituency presidential election results;
d. A declaration that constituency presidential elections results once declared and announced by
respective constituency returning ocers are nal results for the purposes of that election;
e. A declaration that constituency returning ocers possess a fundamental and an inalienable

mandate to announce and declare the nal results of a presidential election at constituency level
and that such declaration is nal and is not subject to alteration, conrmation or adulteration
by any person or authority, other than an election Court, pursuant to Articles 86 and 138(2)
of the Constitution of Kenya.
79. The issue for determination was whether results announced by the Constituency Returning Ocer in
respect the Presidential election were provisional and subject to conrmation by the 1st Respondent.
The Court of Appeal upheld the determination of the High Court that to the extent that Section
39(2) and (3) of the Elections Act, 2011 and Regulation 87(2)(c) provide that the results declared by the
constituency returning ocer are provisional, and to the extent that Regulation 83(2) provides that
the results of the returning ocer are subject to conrmation by the 1st Respondent, these provisions
are inconsistent with the Constitution and therefore null and void.
80. In his oral submissions, counsel for the 1st Respondent Mr Nyamodi, submitted that the pathway to
the nal results was demarcated by the Constitution, the Elections Act, 2011 and Regulations thereunder
and by judicial directions rendered by Superior Courts in Kenya. To this extent, two critical decisions
guided the 1st Respondents electoral returning role; the Maina Kiai case and National Super Alliance
(Nasa) Kenya v Independent Electoral & Boundaries Commission & others [2017] eKLR Civil Appeal
No 258 of 2017 (The NASA case).
81. Counsels submission was that in reliance to the Constitution, the law and judicial guidance, the
1st Respondent used Forms 34B as opposed to Forms 34A as argued by the Petitioners, to declare
the nal results of the presidential election. He emphasized that at the time the nal results of the
presidential election were declared, all Forms 34B had been collated. It was counsels submission that,
by declaring Sections 39 (2) and (3) of the Elections Act, 2011 inconsistent with the Constitution, the
1st Respondents ability to change, amend or alter the results transmitted from the Constituency, was
entirely curtailed. According to counsel, the decision of the Court of Appeal in the Maina Kiai case
extinguished the concept of provisional results. Consequently, the numbers manually entered into
the KIEMS kit at the close of polling and transmitted simultaneous to the Constituency Returning
Centre and the National Tallying Centre, bore no status in law. They were mere statistics, although the
Presiding ocer had to show the Agents present the entries made for conrmation before transmission.
82. To buttress his argument, Mr Nyamodi traced the process of a vote as follows (with reference to
paragraph 20 of the Response to the Petition):
a. Upon the close of polling, the votes cast were counted and the results recorded in Forms 34A.
b. An image of the Form 34A was captured by the Kenya Integrated Election Management
System (KIEMS) kit and the statistics in the Form 34A were then entered into the KIEMS kits
at all polling stations.
c. The presiding ocer would then simultaneously relay the statistics and the image of the Form
34A to the relevant constituency returning ocer and to the National Tallying Centre (NTC).
d. The completion of the transmission of the image of Forms 34A was dependent on the
availability of 3G or 4G network coverage. In respect of areas lacking 3G or 4G network
coverage, the Respondents established alternative mechanisms to ensure completion of
transmission of the image of the Form 34A. (It was however claried, during oral submissions,
that in such instances, the statistics could be sent without the accompanying image.)
e. In accordance with Section 39 (1C) of the Elections Act, the 1st Respondent published the
images of Forms 34A and 34B in respect of the presidential election on its public portal.
f. In all polling stations, the presiding ocers transmitted the statistics of the results through
KIEMS accompanied by the electronic image of Forms 34A.
g. At the time of the declaration of the results of the presidential election, the 1st and 2nd
Respondents had in their possession all the forms required in law for purposes of a declaration
of the results of the presidential election.
h. The procedure adopted in the transmission and tallying of results of the presidential election
was in conformity with the decision of the Court of Appeal in the Maina Kiai case. [Emphasis
added]
83. On the basis of this process, Counsel submitted that the Petitioners allegation that the 1st Respondent
deliberately pre-determined and set itself on a path of subverting the law by being a law unto itself, was
unfounded. However, although Section 44A of the Elections Act, 2011 empowers the 1st Respondent
to set up complementary mechanism for identication of voters and transmission of election results
to ensure that it complies with Article 38 of the Constitution, the Court of Appeal directed that the
tabulated results electronically transmitted from the polling stations in the prescribed forms was a
critical way of safeguarding the accuracy of the outcome of the elections and could not be varied. The
rationale for this determination was that there was no need for 290 Constituency returning ocers
and 47 County returning ocers to troop to the NTC with Forms 34B carrying the hard copies of
the presidential results which they had announced in their respective tallying centres. It was counsels
submission that despite this conclusion, the Court of Appeal did not declare Section 44A of the
Elections Act, 2011 inconsistent with the Constitution.
84. In addition, counsel submitted that the determination by the Court of Appeal on the nality of
presidential election results declared by the constituency returning ocer also changed the structure
of Form 34C. Regulation 87(3)(b) provides that:
“ upon receipt of Form 34A from the constituency returning ocers under sub- regulation
(1), the Chairperson of the Commission shall tally and complete Form 34C. However, the
1st Respondent had to modify Form 34C to reect the entry of Forms 34B, which was the
Form declared by the Court of Appeal to be the source document to determine the winner
of a Presidential election, in place of Forms 34A.
85. Mr Nyamodi concluded by rearming that the way the 1st Respondent structured its transmission
system, was largely based on the Court of Appeals decision in the Maina Kiai case which did not
interfere with or negate the will of the people resident in Form 34A.
(b) The 3rd Respondent
86. Mr Ngatia, counsel for the 3rd Respondent submitted that the Forms 34B produced by the
constituency returning ocers upon tallying the results from the polling stations as contained in Forms
34A were binding upon the 2nd Respondent at the National Tallying Centre. As such, the duty of
the 2nd Respondent at the National Tallying Centre was to tally the results contained in Forms 34B
to produce Form 34C which contained the nal results of the Presidential elections; a duty that was
properly executed.
87. Counsel further rebutted the Petitioners argument that the declaration of results was made at the
County. He urged that the declaration of results was done by presiding ocers at every polling
station, and by the returning ocers at the Constituency Tallying Centre and that the role of the
2nd Respondent was simply to tally the results obtained from the returning ocers in Forms 34B
accompanied by Forms 34A before declaring the nal results of the election. Due to the County
threshold required by Article 138(4)(b) of the Constitution, it was logical for the 2nd Respondent do
announce the results County by County.
88. The Petitioners contention was that the 1st and 2nd Respondents failed to adhere to the guidelines set
by the Court of Appeal in the Maina Kiai case during the conduct of the 2017 Presidential elections.
The Respondents on the other hand demonstrated that the presidential election was conducted in
accordance with those guidelines. However, counsel for the 1st Respondent urged this Court to
consider the place of the Maina Kiai decision rendered by the Court of Appeal, in the conduct
of presidential elections in Kenya and to settle the law for future elections. According to the 1st
Respondent, the role of the 2nd Respondent had been reduced by the Court of Appeal to tallying the
results in Forms 34B to generate Form 34C.
89. Counsel for the 1st Respondent was of the view that this Court does not lose its status to interpret
and apply the Constitution while sitting as a Court of original jurisdiction to hear disputes relating to a
presidential election. Indeed, I agree with counsel for the 1st Respondent that while exercising original
jurisdiction as conferred on this Court by Article 163(3)(a) of the Constitution, this Court will resolve
both issues of law and fact arising in the course of litigation, and settle any issues of constitutional
controversy.
Analysis
90. While it may seem peculiar to delve into analysis of the jurisprudence laid by the Court of Appeal
in the Maina Kiai case, in a case, other than one on appeal, it is my considered opinion that we can
do so through a two-prong approach. Firstly, this is a court of original jurisdiction in presidential
petitions under Article 163, and therefore competent to adjudicate upon matters of both law and fact
in such a matter, including the interpretation and application of the Constitution. Secondly, this Courts
foreboding on circumstances such as present before us, manifests in the decisions of this Court in the
cases of Anami Silverse Lisamula v The Independent Electoral and Boundaries Commission and Two
Others, Sup. Ct. Petition No 9 of 2014, (the Lisamula case) Rawal, DCJ, (as she then was), concurring
[at paragraph 135]:
“ Therefore, the peculiar nature of the Constitution of Kenya, 2010 informs the peculiarity
of the Judiciary in the new dispensation, and more so, that of the Supreme Court. the
Constitution progressively broadens the arena of litigation in this country, and the Supreme
Court must remain steadfast in its duty to address itself to issues that may properly come
[up] before it. The jurisprudence to be developed by the Supreme Court of Kenya may bear
dierences from that of other jurisdictions in the world, because of the special terms of this
countrys charter, which expresses the peoples will, and embodies their mutual agreement.
While most jurisdictions would command a Court to relieve itself of duty by making a
prompt nding on jurisdiction, Kenyas Constitution directs the Supreme Court to take no
rest, until all unsettled issues of its interpretation and application are resolved [Emphasis
supplied].
In the Aramat case, [at paragraphs 101 and 111]:
[101] We would make it clear in the instant case that, it is a responsibility vested
in the Supreme Court to interpret the Constitution with nality: and this
remit entails that this Court determines appropriately those situations in
which it ought to resolve questions coming up before it, in particular, where
these have a direct bearing on the interpretation and application of the
Constitution. Besides, as the Supreme Court carries the overall responsibility
[The Constitution of Kenya, 2010, Article 163(7)] for providing guidance on
matters of law for the States judicial branch, it follows that its jurisdiction is an
enlarged one, enabling it in all situations in which it has been duly moved, to
settle the law for the guidance of other Courts.
[111] From the principles thus stated, it is clear to us that this Court
ought to maintain constant interest in the scheme and the quality
of jurisprudence that it propounds over time, even where it is
constrained to decline the jurisdiction to deal with any particular
questions.
Whatever option it takes, however, this Court ought always to
undertake a methodical analysis of any issues it is seized of,
and ought always to draw the whole dispute to a meaningful
conclusion, bearing directions and nal orders, in the broad
interests of both the parties, and of due guidance to the judicial
process and to the Courts below. [Emphasis added]
In Re The Matter of the Interim Independent Electoral Commission, Sup. Ct. Civil Application No 2 of
2011; [2011] eKLR (Re IIEC) this Court has the jurisdiction to interpret any constitutional provisions
in the course determining any matter. It held that:
Indeed, interpretation of the Constitution stands to be conducted, for dierent purposes

and at dierent stages, by a vast array of constitutional organs: so, for instance, the State Law
Oce in advising Government Ministries, is entitled to interpret the Constitution as may
be necessary; and the several independent Commissions under the Constitution are similarly
entitled to interpret the Constitution as part of the performance of their respective mandates.
The Supreme Court too, may take its position as guided by its own interpretation of the
Constitution. [Emphasis added]
91. At the centre of the instant case is the impact of the decision of the Court of Appeal in the Maina
Kiai case to the constitutional status of Section 39 (in its entirety) and Section 44A of the Elections Act,
2011; the role of the Chairperson of the Independent Electoral and Boundaries Commission pursuant
to Article 138(10) (a) of the Constitution; and the overall mode of transmission of presidential election
results from the polling station to the National Tallying Centre as elaborated in the Constitution, the
Elections Act, 2011 and Regulations thereunder. It is important to note that no intention of an Appeal
from this decision was lodged in the Supreme Court Registry within the statutory 14 days. Bearing
in mind the Supreme Courts constant call to interpret the Constitution, these issues still engage this
Courts jurisdiction under Article 163(3)(a).
92. This case therefore presents two apposite issues for determination:
(i) whether in conducting the 2017 presidential election, the 1st and 2nd Respondents adhered
to the guidelines set by the Court of Appeal in the Maina Kiai case; and
(ii) what is the place of this jurisprudence in the conduct of future presidential elections in Kenya?
93. The starting point is to place the Maina Kiai case in context. This was an appeal against the
Judgement of the High Court delivered on April 7, 2017 in which the High Court made the following
declarations:
a. that to the extent that section 39(2) and (3) of the Elections Act provides that the presidential
election results declared by the constituency returning ocer are provisional (it) is contrary to
Articles 86 and 138(2) of the Constitution and is therefore null and void;
b. that to the extent that regulation 87(2)(c) of the Elections (General) Regulations 2012 provides
that presidential election results declared by the constituency returning ocer are provisional
(it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
c. that to the extent that regulation 83(2) of the Elections (General) Regulations 2012 provides
that presidential election results declared by the constituency returning ocers are subject to
conrmation by the Commission (it) is contrary to Articles 86 and 138(2) of the Constitution
and is therefore null and void;
d. that the presidential election results declared by the constituency returning ocer are nal in
respect of the constituency, and can only be questioned by the election court;
e. that to the extent that the 1st respondent interprets section 39(2) and (3) of the Elections Act
and regulations 83(2) and 87(2)(c) to mean that it can conrm, alter, vary and/or verify the
presidential election results declared by the constituency returning ocer in the particular
constituency (it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null
and void.
The Appellant (1st Respondent in this case) sought to have the Judgement of the High Court
overturned. In arriving at its determination, the Court of Appeal considered the meaning of Section
39(1C) of the Elections Act, 2011 (as amended) and observed that:
From our own reading of all the provisions under review, the authorities relied on, and
bearing in mind the history that we have set out in detail in this judgment, we are convinced
that the amendments to the Act were intended to cure the mischief identied by the
then former Chairperson of the appellant, and other stakeholders. That mischief was, the
spectacle of all the 290 returning ocers from each constituency and 47 county returning
ocers trooping to Nairobi by whatever means of transport, carrying in hard copy the
presidential results which they had announced at their respective constituency tallying
centres. The other fear was that some returning ocer would in the process tamper with the
announced results. [Emphasis added]
94. The Court of Appeal also found that the electoral system reforms which were emphasized in the
2016 and 2017 Amendments to the Elections Act, 2011 was the use of information technology to
guarantee the accuracy and integrity of the election results. It noted that Section 44(1) required the
1st Respondent in this matter to:
44.
(1) …establish an integrated electronic electoral system that enables biometric

voter registration, electronic voter identication and electronic transmission
of results.
…
3. ...ensure that the technology in use under subsection (1) is simple, accurate,
veriable, secure, accountable and transparent.
…
(5) …in consultation with relevant agencies, institutions and stakeholders,

including political parties, make regulations for the implementation of this
section...
…
44A. Notwithstanding the provisions of section 39 and section 44, the Commission shall put in
place a complementary mechanism for identication of voters and transmission of election
results that is simple, accurate, veriable, secure, accountable and transparent to ensure that the
Commission complies with the provisions of Article 38 of the Constitution. [Emphasis added]
On the basis of these Sections, the Court of Appeal held:
We are satised that with this elaborate system, the electronic transmission of the already
tabulated results from the polling stations, contained in the prescribed forms, is a critical way
of safeguarding the accuracy of the outcome of elections, and do not see how the appellant
or any of its ocers can vary or even purport to verify those results, particularly when it is
clear that, by Article 86 (d), section 2 of the Act and regulation 93(1), all election materials,
including ballot boxes, ballot papers, counterfoils, information technology equipment for
voting, seals and other materials, are to be retained in safe custody by the returning ocers
for a period of three years after the results of the elections have been declared, unless required
in proceedings in court.
The information contained in Form 34, which has since been replaced following the
promulgation of the Elections (General) (Amendment) Regulations, 2017, is primary
information that is itself arrived at after an elaborate process at two levels of the electoral
system to safeguard the integrity of the outcome before it is transmitted to the national
tallying centre. Regulations 73 to 90 enumerate the process of counting of votes, declaration
and transmission of results.
Once the presiding ocer closes the polling station at the end of voting, he is required, in the
presence of the candidates or agents to open each ballot box and empty its contents onto the
counting table or any other facility provided for the purpose; cause to be counted, the votes
received by each candidate by announcing the name of the candidate in whose favour the
vote was cast; display to the candidates or agents and observers the ballot paper suciently
for them to ascertain the vote; and put the ballot paper at the place on the counting table, or
other facility provided for this purpose, designated for the candidate in whose favor it was
cast. The total number of votes cast in favour of each candidate is then recorded in a tallying
sheet in Form 33. [Emphasis supplied]
The Court of Appeal, emphasizing on the centrality of the activities at the polling station on election
day held:
We bear in mind that presidential election, where two or more candidates are nominated,
are held in each constituency and the foregoing process is undertaken at the constituency,
the details of which are recorded at the end of the exercise in Form 34. It is inconceivable
that those details, arrived at after such an elaborate process can be viewed as provisional,
temporary or interim. The inescapable conclusion is that it is nal and can only be disturbed
by the election court.
It is clear beyond peradventure that the polling station is the true locus for the free exercise
of the voters will . The counting of the votes a s elaborately set out in the Act and the
Regulations, with its open, transparent and participatory character using the ballot as the
primary material, means, as it must, that the count there is clothed with a nality not to be
exposed to any risk of variation or subversion. It sounds ill that a contrary argument that
is so anathema and an tithetical to inte g rity and accuracys hould fal l from the appellants
mouth. [Emphasis supplied]
95. The Appellate Court expansively interrogated the process of voting as enunciated under Article 86 of
the Constitution and was of the view that it was an aront to constitutional values and principles to
claim that the 2nd Respondent in this case, could alone, at the national tallying centre or wherever,
purport to conrm, vary or verify the results arrived at through an open, transparent and participatory
process. The Court was of the view that Article 138(3)(c) reinforces the values under Article 86 by
requiring the 1st Respondent to tally, verify the count and declare the result in a presidential election,
after counting the votes in the polling stations. The Court interpreted this Article to mean that the 1st
Respondent could only declare the result of the presidential vote at the constituency tallying centre
after the process of tallying and verication was complete. According to the Appellate Court, the
2nd Respondent has a signicant constitutional role under Article 138(10) as the authority with the
ultimate mandate of making the declaration that brings nality to the presidential election process.
The Court observed that the 2nd Respondent is required to tally all the results exactly as received
from the 290 Returning Ocers country-wide without adding, subtracting, multiplying or dividing
any number contained in the two forms from the constituency tallying centre and verication or
conrmation related to establishing that the candidate to be declared President-elect had met the
threshold set under Article 138(4).
96. The Court of Appeal was of the view that the introduction of Section 39 (2) and (3) of the Elections
Act, 2011 sowed discord, mischief and confusion in this elaborate process, making its retention in the
Elections Act, 2011, unnecessary and in fact, unlawful. It remarked that the Amendment to Section
39 was intended to align it with Articles 81, 82, 86, 101, 136 and 138 of the Constitution to provide
for procedure at the general elections and that by dint of Section 39(1) of the Act, required the 1st
Respondent (through its Returning Ocers) to tally, and verify the count and declare the results at
the polling stations immediately after close of polling. It observed that:
Article 138 deals with events at the polling stations where votes are counted, tallied, veried
and declared. We hold further that reference to the appellant in Sub Article (3)(c) is not to
be construed to mean the Chairperson but rather, the returning ocers who are mandated,
after counting the votes in the polling stations, to tally and verify the count and declare
the result. The appellant, as opposed to its chairperson, upon receipt of prescribed forms
containing tabulated results for election of President electronically transmitted to it from
the near 40,000 polling stations, is required to tally and "verify the results received at the
national tallying centre, without interfering with the gures and details of the outcome of
the vote as received from the constituency tallying centre. At the very tail end of this process,
in Article 138(10) the chairperson then declares the result of the presidential election,
and delivers a written notication of the result to the Chief Justice and to the incumbent
President. That is how circumscribed and narrow the role of the chairperson of the appellant
is.
97. The Court also focused on the Amendments to the Elections (General) Regulations 2012 by the 1st
Respondent through Gazette Supplement, Legal Notice No 72 of 21st April, 2017, replacing the Form
titled "Declaration of Presidential Election Results at a Polling Station with two forms (Forms 34A and
34B) titled "Presidential Election Results at The Polling Station and "Collation of Presidential Election
Results at the Constituency Tallying Centre, consecutively. It thus held:
“ It is our rm position that the purpose for which section 39(2) and (3) of the Act and
regulations 83(2) and 87(2)(c) were promulgated or made have the eect of infringing
constitutional principles of transparency, impartiality, neutrality, eciency, accuracy and
accountability.
…
The lowest voting unit and the rst level of declaration of presidential election results is the
polling station. The declaration form containing those results is a primary document and
all other forms subsequent to it are only tallies of the original and nal results recorded at
the polling station.
… there is no doubt from the architecture of the laws we have considered that the people
of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one
individual, the chairperson of the appellant.
Ultimately we nd no fault in the determination of the High Court that to the extent that
section 39(2) and (3) of the Act and regulation 87(2)(c) provide that the results declared by
the returning ocer are provisional, and to the extent that regulation 83(2) provides that the
results of the retuning ocer are subject to conrmation by the appellant, these provisions
are inconsistent with the Constitution and therefore null and void.
Did the 1st and 2nd Respondents adhere to the guidelines set by the Court of Appeal in the Maina
Kiai case?
98. In my view, the 1st and 2nd Respondents satisfactorily demonstrated that the electoral process was
conducted in accordance with the directions of the Court of Appeal in the Maina Kiai case. Processes
that had been put in place before the determination by the Court of Appeal declaring Section 39(2)
and (3) of the Elections Act, 2011 and Regulation 87 (2)(c) unconstitutional were adjusted to:
a. eliminate "provisional results" and
b. adjust Form 34C to reect a collation of Forms 34B from the Constituency Returning Ocers
who had veried and tabulated the nal results from the polling stations in Forms 34A.
99. The declaration by the 2nd Respondent of the results of the election per County was in keeping with
the constitutional requirement that the candidate declared elected as President receives at least twenty-
ve per cent of the votes cast in each of more than half of the Counties (herein, the County threshold).
100. I am therefore satised with the adherence by the 1st and 2nd Respondents, to the guidelines by the
Court of Appeal in the Maina Kiai case. This decision, delivered on June 23, 2017, 35 days prior to
the conduct of the Presidential election in August, 2017, was denitive of the status of the law at that
time. As such, the 1st and 2nd Respondents adherence to those guidelines was an answer to the duty
in Article 10 of the Constitution, binding all State Organs and State Ocers to the national values and
principles, in this case, the rule of law, whenever any of them (such as the 1st and 2nd Respondents)
applies or interprets the Constitution, enacts, applies or interprets any law; or makes or implements
public policy decisions. The only challenge was that the system of data transmission system from the
polling station to the National Tallying Centre had already been set up.
101. Having so determined, I must now prospectively interrogate, as invited by the Respondents to do, the
place of the Maina Kiai case in the conduct of future presidential elections in Kenya.
102. This Court is not new to Kenyas complex electoral history as so aptly considered by the Court of
Appeal in its analysis. In fact, one of the issues this Court had to deal with in its maiden election appeals
litigation following the March, 2013 General Elections was the process of declaration of election results
resulting in an outcome after which the parties to the election, or a voter, are at liberty to le an election
petition at the High Court. An examination of Hassan Ali Joho & another v Suleiman Said Shahbal
and others, (the Joho case), alongside that of Maina Kiai is necessary because Joho was extensively relied
on by the parties during the hearing and determination of the appeal forming an integral part of the
guiding precedent followed by the Appellate Court.
103. The Maina Kiai case, though in many respects similar to the case of the Joho case, Supreme Court
Petition No 10 of 2013; [2013] eKLR was a play of dierent legal and constitutional provisions. while
the Joho Case interrogated the plurality of declaration processes for a gubernatorial election, a three-
tier election with no requirement of a County or national threshold, the Maina Kiai case addressed
itself to the declaration processes in a Presidential election; a two-tier election process [Article 138 (3)
(c)] with a mandatory national and County threshold [Article 138 (4)(a) and (b)], and a dened mode
of declaration [Article 138 (10)(a)]. Noteworthy is that these two cases were in dierent Electoral Law
Amendment periods. The foregoing aspects therefore signal an imperative to distinguish Joho from the
Maina Kiai case.
104. The Court of Appeal succinctly framed the controversy before it in the Maina Kiai case as follows:
In the end, the learned Judges granted the petition by declaring that;
“ …..to the extent that section 39(2) and (3) of the Elections Act provides that the
results declared by the returning ocer are provisional, that is contrary to Articles
86 and 138(2) of the Constitution. To the extent that regulation 83(2) of the
Elections (General) Regulations 2012 provides that the results of the returning
ocer are subject to conrmation by the Commission, that is contrary to Articles
86 and 138(2) of the Constitution. To the extent that regulation 87(2)(c) of the
Elections (General) Regulations 2012 provides that the results that the returning
ocer shall electronically to the Commission are provisional, that is contrary to
Articles 86 and 138(2) of the Constitution." (Emphasis supplied)
The highlighted phrase "subject to conrmation" and the word "provisional" were the main cause of
discomfort prompting the 1st, 2nd and 3rd Respondents to Petition the High Court for relief. It is the
construction of those very words by the three learned Judges that has now aggrieved the appellant to
come to this Court. [Emphasis added]
105. The question before the Court of Appeal was whether the purpose for which Section 39(2) and
(3) of the Elections Act and Regulations 83(2) and 87(2)(c) (both Regulations now amended) were
promulgated, or the eect of their implementation infringed any provision of the Constitution. In
summary, the controversy was:
(a) the nality of the declaration (if any) of presidential election results at the polling station, the
constituency tallying center and the national tallying centre and
(b) the process of transmission of election results from the polling station to the National Tallying
Centre and the role of the Chairperson of the Commission in that process.
106. I agree with the determination of the Court of Appeal that
"the polling station is the true locus for the free exercise of the voters will and that once the
counting of votes as elaborated in the Elections Act, 2011 and Regulations thereunder, with
its open, transparent and participatory character using the ballot as the primary material
means, as it must, that the count there is clothed with nality not to be exposed to any risk
of variation or subversion."
Consequently, the concept of 'provisional results does not exist in our Constitutional electoral practice.
As such, we uphold the determination by the Court of Appeal that Sections 39(2) and (3) of the
Elections Act, 2011 are inconsistent with the Constitution and to that extent, null and void.
107. However, I depart from the decision by the Appellate Court to the extent that:
iv it endorses another layer of tallying and verication of the result of the presidential vote in the
form of the Constituency tallying centre and
v incapacitates the Chairperson of the Commission, an integral part of the declaration process
in a presidential election, from verifying the polling results.
In particular, the determination that:
Our interpretation of this Article (138 (3)(c) is that the appellant, which is represented at
all the polling stations, constituency and county tallying centres can only declare the result
of the presidential vote at the constituency tallying centre after the process we have alluded
to is complete, that is, after tallying and verication.
and declared. We hold further that reference to the appellant in Sub Article (3)(c) is not to be
construed to mean the chairperson but rather, the returning ocers who are mandated, after
counting the votes in the polling stations, to tally and verify the count and declare the result.
The appellant, as opposed to its chairperson, upon receipt of prescribed forms containing
tabulated results for election of President electronically transmitted to it from the near
40,000 polling stations, is required to tally and "verify" the results received at the national
tallying centre, without interfering with the gures and details of the outcome of the vote as
received from the constituency tallying centre. At the very tail end of this process, in Article
138(10) the chairperson then declares the result of the presidential election, and delivers a
written notication of the result to the Chief Justice and to the incumbent President. That
is how circumscribed and narrow the role of the chairperson of the appellant is.
108. It is conceded that the Chairperson of the Commission cannot supplant the entries of a presiding
ocer against any candidate with his own gures, however, an arithmetic verication of the correctness
of the summation in Form 34A and an examination of the authenticity of the instruments of
declaration is permitted, nay, required by the Constitution. According to the Constitution, the
Chairperson of the Commission is also the Returning Ocer in a Presidential Election and therefore,
ought to receive and preserve electoral material relating to that election in order to aid the election
Court in its mandate as the nal verifying Agency as elaborated in the foregoing section of this
dissenting Judgement.
109. To place the role of the Chairperson of the Commission in the scheme of a presidential election, I am
guided by the following interrogations:
(i) what is a declaration in a presidential election?
(ii) who makes that declaration

and;
(iii) when is that declaration made?
110. The formula of locating a declaration of the result of a presidential election lies within the Constitution
and can be derived by a reading of Article 138 and 140 of the Constitution, together.
Article 138 (1)….. (2)…...
(3) In a presidential election-
c. After counting the votes in the polling stations, the independent Electoral and
Boundaries Commission shall tally and verify the count and declare the result.
[Emphasis added]
(4) A candidate shall be declared elected as president if the candidate receives-
a. more than half of all the votes cast in the election; and
b. at least twenty-ve percent of the votes cast in each of more than half of the Counties.
…..……………
(10) Within seven days after the presidential election, the Chairperson of the Independent Electoral
and Boundaries Commission shall-
(a) declare the result of the election

Article 140
(1) A person may le a petition in the Supreme Court to challenge the election of the President-
elect within seven days after the date of the declaration of the results of the presidential election.
111. Adopting the decision of this Court in the Joho case, the word "declared in Article 180 (4) of
the Constitution (in this case, Article 138), has been used to depict the nality culminating in the
declaration of the winner of an election. Article 138 (3) (c) of the Constitution is the pace -setter of the
declaration process. It calls on the Commission to tally and verify the count before declaring the result.
This formula is in terms of Article 86(a), simple, veriable, transparent and accountable. Article 138(3)
(c) eliminates need for the polling results in a presidential election to be tallied at the constituency
tallying centre before being declared. Presidential election results are declared at the national tallying
centre, by the Chairperson of the Commission. Before that declaration can be made; several things
must be done:
i. the polling results must be tallied-Art. 138 (3)(c)
ii. the count must be veried-(Art. 138 (3)(c)
iii. the national threshold must be met-Article 138(4)(a) and
iv the County threshold must be met-Article 138(2)(c).

These prerequisites can only be done at the National Tallying Centre by the Chairperson of the
Commission who is also the person who Returns the Results of the Presidential Election in accordance
with the Constitution.
112. I am persuaded by the reasoning of the Irish Supreme Court in Kiely v Kerry County Council (Rev 1)
[2015] IESC 97, where Mr Justice William M. McKechnie writing for the majority, elaborated the role
of a returning ocer as follows, at paragraph 45:
Whilst it is undoubtedly the case that the role of the returning ocer is indispensable to the
election process, it is also evidently the case that he or she, in fullling that role, is a creature
of statute and is bound by the terms of the express legislative provisions above referred to.
Accordingly, in the performance of his (or her, as the case may be) duties and functions he
must be guided by the principles so laid down in such legislation, within which is set out the
framework where those whose names are validly on the register of electors can give eect to
the franchise so vested in them. He must obviously not exceed the limits of the competence
so conferred on him: he is therefore conned to what can legitimately be extracted from
the provisions in issue, either by way of express conferment or necessary intendment. He
cannot operate in excess of these limitations. He cannot, for example, justify any act or
action, however desirable his intentions might be, based on any form of inherent power for
the simple reason that his oce is not amenable to attract competence in this way. When
the occasion arises it therefore becomes a matter of statutory interpretation as to whether
or not the act or omission complained of is within the competence of his oce to perform.
[Emphasis added]
113. The role of the Chairperson of the Commission as the Returning Ocer of the result of the
presidential election is conned within the four corners of articles 138 and 140 of the Constitution.
The following determination by the Court of Appeal cannot therefore hold.
and declared. We hold further that reference to the appellant in Sub Article (3)(c) is not to
be construed to mean the Chairperson but rather, the returning ocers who are mandated,
after counting the votes in the polling stations, to tally and verify the count and declare the
result.
114. This is the only logical result following a holistic and purposive interpretation of the Constitution. We
have previously explicated on the essence of a holistic and purposive interpretation of the Constitution
In Re Kenya National Human Rights Commission, Supreme Court Advisory Opinion Reference No
1 of 2012 as follows:
“ It must mean interpreting the Constitution in context. It is the contextual analysis of a

constitutional provision, reading it alongside and against other provisions, so as to maintain
a rational explication of what the Constitution must be taken to mean in light of its history,
of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation
does not mean an unbridled extrapolation of discrete constitutional provisions into each
other, so as to arrive at a desired result.
In the Speaker of the Senate & another v Attorney-General & 4 others, Sup Ct. Advisory Opinion No 2
of 2013; [2013] eKLR, held, with respect to interpretation of the Constitution, as follows-at paragraph
226:
The Court, in the circumstances, should adopt a holistic approach to interpretation,

with a view to protecting and promoting the purpose, eect, intent and principles of the
Constitution.
In his concurring Opinion in the same matter, Mutunga, CJ & P, (as he then was) observed at paragraph
185 that a Constitution does not subvert itself. Therefore, no provision should be deemed to strike
down another, but rather the provisions must be interpreted in a manner that each supports the other.
the Constitution must be interpreted holistically and no provision should be read in isolation.
In the Joho case, this Court held that:
Indeed, ordinarily, in our view, a question regarding the interpretation or application of the
Constitution may arise from a multiplicity of factors and interrelationships in the various
facets of the law. Consequently, the Constitution should be interpreted broadly and liberally,
so as to capture the principles and values embodied in it.
[Emphasis added]
115. It is therefore my considered view that Article 138 of the Constitution must be interpreted liberally and
in a manner that none of its sub-Articles strikes down the other.
Electronic and Manual Electoral Processes

116. Having determined the place of the Maina Kiai case in the 2017 Presidential Elections, and having, by
this dissent appealed to the Supreme Courts consideration of that decision in Kenyas electoral practice,
noting the unnecessary burden upon the value of simplicity of the electoral process through an added
layer of the Constituency, I now turn to the role of electronic results transmission as a complement to
the manual transmission of election results (the classical ballot election). Once again, the pillars of this
section have been elaborated in the dissenting opinion of my brother, Justice J.B Ojwang, SCJ and I
shall restate only in part, where necessary.
117. The value of transparency underscores a critical component of elections: their public- nature. A voter
must be able to verify whether the Elections Act has been conducted and recorded accurately-hence the
participatory nature of vote counting and tallying expressed in the Constitution, the Elections Act and
Regulations thereunder. The public is represented, at the counting stage by accredited members of the
media and international observers. The process of voting and declaration is also public.
118. History is a great revealer of intent. Events inspire laws and public processes and at the heart of these
laws and processes are shortcomings to be remedied, crises to be averted, needs to be met, and a nation
to be eciently and eectively governed. The disputed 2007 Presidential elections marked a turning
point in electoral management in Kenya. Describing the political atmosphere during this period, the
Committee of Experts on Constitutional Reform noted in their Preliminary Report dated November
17, 2009 that:
These elections were heavily contested… The nal results were delayed and then announced amidst
public tension and accusations that the delay was a sign that the Presidents party was attempting to
rig the elections. Eventually, the results were announced on December 30, 2007 and the President
hurriedly sworn in.
119. The Report of the Joint Parliamentary Select Committee on matters of the Independent Electoral
and Boundaries Commission traces the historical use for deployment of Information Technology in
elections. At paragraph 359, the report makes reference to the experience of voter registration and the
ills thereof witnessed during the 2007 elections thus:
359. The Independent Review Commission on the General Elections found that the 2007 disputed
General Elections were not credible due to names of deceased voters appearing in the electoral
register, impersonation of absent voters and defective planning of voter registration system
among other shortcomings in the electoral process. The Commission recommended that –
“ Use of technology should also be implemented in order to enhance, not only

integrity' and accuracy of results, but to increase speed of transmission, storage, and
further analysis and audits by the ECK. If the law does not recognize results that are
transmitted or tallied electronically, this technical solutions should, at least before
the law is amended, be used as a parallel system for providing a backup system for
ensuring accuracy of tallies and results, while still using the paper-based system of
statutory forms" [Emphasis supplied]
120. Based on the lessons drawn from the 2007 General Elections, technology was introduced to address the
dual problem of (a) voter identication and (b) vote transmission. Following this recommendation,
the Commission employed technology in the 2013 General Elections in the terms elaborated by the
Committees Report hereunder:
359. The Independent Electoral and Boundaries Commission employed technology in the 2013
General Elections in the following forms-
1. The Biometric Voter Registration System (BVR) was used for registering voters.
It comprises a laptop, a nger print scanner and a camera. The Biometric Voter
Registration System (BVR) captures a voters facial image, nger prints and civil data
or Personally Identiable Information (PII), that is, the name, gender, identity card or
passport number, telephone number among other details.
2. The Electronic Voter Identication System (EVID) is an electronic poll book. There
are two types of Electronic Voter Identication System (EVID) technology: the laptop
with attached nger-print reader and the handheld device with in-built nger print
reader. The Electronic Voter Identication System (EVID) veries and conrms
voters electronically as registered by the Biometric Voter Registration System (BVR).
They are used to check-in voters at polling station on polling day and are helpful in
Streamlining. Electronic Voter Identication System (EVID) curbs impersonation and
ensures that only those who registered to vote are allowed to vote.
3. The Political Party Nominations System (PPNS) ensures that primary data on
candidates nominated by political parties are entered in a format that makes it easy
for the Independent Electoral and Boundaries Commission to verify the accuracy of
the candidate details, compliance and generate ballot paper proofs. This is achieved by
cross-matching the voters register and the political party register.
4. The Results Transmission System (RTS) is a system for transmitting provisional results
electronically to an observation centre. At the end of voting and when votes have
been counted and tallied, the Presiding Ocers enter the data on the signed results
sheet (Form 35) into specially congured mobile phones and transmit the results
simultaneously to the election results centres at the constituency, county and national
level. The Results Transmission System (RTS) is meant to enhance transparency
through electronic transmission of provisional results from polling stations and to
also display and visualize provisional results at the tally centers and provide access to
provisional elections data to media and other stakeholders in real time.
121. Several issues referenced in the Report and detailed in the decision of the Court in the Raila 2013 case
emerged from the use of technology in elections. At paragraphs 233-235, the Court observed that:
233. We take judicial notice that, as with all technologies, so it is with electoral technology: it is
rarely perfect, and those employing it must remain open to the coming of new and improved
technologies. Analogy may be drawn with the traditional refereeing methods in football which,
as their defects became apparent, were not altogether abandoned, but were complemented
with television- monitoring, which enabled watchers to detect errors in the pitch which had
occurred too fast for the referees and linesmen and lineswomen to notice.
234. In the instant case, there is evidence that the EVID and RTS technologies were used in the
electoral process at the beginning, but they later stalled and crashed. Dierent reasons explain
this failure but, by the depositions of Dismus Ongondi, the failure mainly arose from the
misunderstandings and squabbles among IEBC members during the procurement process –
squabbles which occasioned the failure to assess the integrity of the technologies in good time.
It is, indeed, likely that the acquisition process was marked by competing interests involving
impropriety, or even criminality: and we recommend that this matter be entrusted to the
relevant State agency, for further investigation and possible prosecution of suspects.
235. But as regards the integrity of the election itself, what lawful course could IEBC have taken
after the transmission technology failed? There was no option, in our opinion, but to revert
to the manual electoral system, as was done.
122. A stakeholder recommendation of employing an integrated electoral technology was implemented
birthing the Kenya Integrated Electoral Management System [KIEMS). The functioning of this system
is what has been contested in the Petition and supporting Adavits. In summary:
[See foregoing paragraphs of this Judgement and the pillars in Justice Ojwangs dissenting Judgement
for a full outline]
i That there was system manipulation occasioning unfair advantage to the 3rd Respondent and
unfair disadvantage to the Petitioners. In particular, that there was a consistent 11% variance
between the 1st Petitioner and the 3rd Respondent in the transmission results displayed on
the Commissions portal.
ii. That certain results were not transmitted in the form mandated by the Electoral law, fatally
compromising the result of the election.
iii. That the results transmitted using the KIEMS system were materially dierent between Forms
34A and B
iv. That the election results were pre-determined by the Commission
123. The case on transmission is supported by the Adavits of Raila Odinga, Aprielle Oichoe, Koitamet
Ole-Kina and Godfrey Osotsi.
124. The 1st Petitioners evidence can be summarized as follows:
(i) That the IEBC deliberately and/or negligently comprised the security of the integrated
electoral management system (KIEMS) and thereby exposed it to unlawful interference by
third parties.
(ii) Collation, tallying, verication, verication and transmission of the presidential results was
riddled with procedural aws, illegalities of the nature and extent that compromised the
credibility of nal result.
(iii) That soon after procurement of KIEMS and establishment of ETAC, the IEBC conducted
itself in a manner that weakened the security of integrated electronic system and exposed it to
risks of interference from third parties that may have compromised the integrity of system. In
particular:
a. That the Elections Technology Committee (ETAC) was declared unconstitutional in

Petition No 127 of 2017 and the Commission failed to defend the Regulations or
inform the stakeholders of the said suit.
b. That the Commission led Petition No 415 of 2016 to declare section 39(1C)
unconstitutional, which section is the basis of electronic transmission of results.
c. That the Commission failed to put in place several preparatory measures set up by
law to assure the integrity and eciency of KIEMS such as preparation, development,
publication and implementation of a disaster recovery and operations continuity plan
in the event KIEMS collapsed.
d. That two days to the presidential elections, IEBC announced that over 11,000 polling
stations were purportedly out of 3G and 4G network range and results from these
locations would therefore be transmitted manually.
e. That the Commission commenced the testing, verication and deployment of
technology two days to the general elections contrary to requirement of at least 60 days
to the election and therefore denied the public opportunity to verify the eciency and
the security of the same.
f. That despite clear advice from the Communication Authority of Kenya against
hosting a private cloud to supplement the Commissions primary and disaster sites, it
contracted OT Morpho SAS (France) thereby compromising the security of the cloud.
g. That the death of the Commissions ICT Manager in charge of the management of
the integrated electronic system was a clear attempt to further weaken the electronic
electoral system.
h. That failure to transmit results from polling stations and constituency electronically
together with the prescribed forms exposed the collation and tallying process to
manipulation.
i. That the unreasonable delay in electronically transmitting results together with the
prescribed forms grossly aected the credibility and validity of the results. They averred
that transmission of results without prescribed forms has no basis in law.
125. Aprielle Oichoe swore an Adavit on the basis of expertise in cyber security. As such, her deposition
was drawn on the basis that her observation of the transmission process, compounded by her expertise
(although none was proven in terms of certications) was useful in evaluating compliance with the
six main components or principles which the Commission systems and database ought to have been
tested against. The deponent outlined the six principles as follows:
1. Condentiality: that information ought to be accessed by authorized persons.
2. Integrity: Information used should be accurate, complete and protected from malicious
modication either by authorised or unauthorized persons. In this regard, she swore that
non-authenticated forms and non-prescribed results appeared on the 1st Respondents public
portal. No evidence with particulars of these forms was however adduced to support this expert
opinion.
3. Availability: it was her sworn evidence that systems required must be available as and when
required by those authorized to use it in accordance with Articles 35 and 47 of the Constitution
and Section 44 of the Elections Act as read with Section 4 of the Access to Information Act and
Regulation 15 (4) of the Elections (Technology) Regulations, 2017. She swore that during the
voting process, some persons could not nd their names on the register and the explanation
given by the Returning Ocer in Upper Hill High School Polling station was that the aected
persons either shard identity cards with other persons or their data has been lost by the 1st
Respondent. Once again, no evidence was adduced, either in the form of adavits from the
aected persons or the Returning Ocer in question to support this allegation.
4. Non-repudiation: An audit trail must be maintained on activities related to the information.

Logs are therefore essential to trace actions performed on a computer system. That an entry
was made into the system and a strange return made in the system in the form of an exercise
book. The non- repudiation principle is supposed to ensure security by the unique identier,
in this case it was the QR code used by presiding ocer to map the KIEMS device within the
Results Transmission system
5. Authenticity: the information itself must be proven to be genuine and the source must also
be proven to be genuine. In her expert opinion, at the time of declaration of results, there
were only 29,000 Forms 34A available and the 1st Respondent declared the results with the
authenticity of most Forms in dispute. Some of the forms used to declare the results diered
with those returned by the Agents from the eld. Once again, these forms were not produced
as annexures to the Adavit.
6. Privacy: IEBC failed to secure its data justifying the conduct of a systems audit.
An Assessment of the 'Expert Opinion' of Aprielle Oichoe

126. Although the deponent claimed cyber security expertise, no certications were provided to prove the
existing expertise to warrant the weight placed on expert opinions by the Court. Section 48 of the
Evidence Act, Cap 80 of the Laws of Kenya is instructive on this point:
48. Opinions of experts
(1) When the court has to form an opinion upon a point of foreign law, or of science
or art, or as to identity or genuineness of handwriting or nger or other impressions,
opinions upon that point are admissible if made by persons specially skilled in such
foreign law, science or art, or in questions as to identity, or genuineness of handwriting
or ngerprint or other impressions.
127. Although the deponent outlined the six principles which the transmission systems and database ought
to have been tested against, the source of that opinion was not provided. Sucient evidence to prove
the link between those principles, the imperatives of electoral conduct and elaborate omission by the
1st Respondent, supported by any evidence, was not provided. Experts, when admitted before the
Court, in person or by deposition, in the words of Lord Justice Jacob in Rockwater Ltd v Technip France
SA (formerly Coflexip SA & Anor, Case No A3/2003/107 have a primary function:
“ their primary function is to educate the court in the technology – they come as teachers, as
makers of the mantle for the court to don."
Further, as elaborated by Sir Donald Nicholls V-C giving the judgment of the Court of Appeal in
Mölnlycke v Proctor & Gamble [1994] RPC 49 at p. 113 (although determining a matter of patent):
As a practical matter a well-constructed experts report containing opinion evidence sets out
the opinion and the reasons for it. If the reasons stand up the opinion does, if not, not.
[] In my view, this Adavit does not meet the essential attributes of 'Expert opinion to guide
the resolution of the question of transmission verication in issue.
128. Koitamet Ole Kina deponed that as a duly accredited agent of the Petitioners, he was at the National
Tallying Centre and witnessed results Streaming into the online portal at 5:15pm, soon after the
close of polling. They could not however verify the results of the elections because the same were not
accompanied by hard copies of Forms 34A or the soft copies received by the 1st Respondent on their
servers. They received 23,000 Form 34A on 10th August, 2017, and 50 Forms 34B. On 11th August,
2017, they were notied that only 29,000 Forms 34A were available with a shortfall of over 11,000
Forms 34A. Further, only 108 Forms 34B were available at the National Tallying Centre. Later that
evening, the Commission conrmed that it was in possession of all Forms 34B and was ready to declare
the result. In a letter dated 15th August, 2017 by the CEO of the 1st Respondent, it was indicated that
all the Forms 34B had been availed by the Commission and handed to the deponent on 14th August,
2017.
129. Godfrey Osotsi, the Secretary General of Amani National Congress Party and a duly accredited Agent
nominated by NASA swore an adavit as an IT expert with over 12 years experience. He swore that on
the basis of information from Waqo Shuke, a member of the 1st Respondents ICT sta, the tallying
process involved two sets of results, those with Forms 34A and those based on text messages only.
The explanation obtained was that these results were coming from areas with no 3G or 4G network
coverage. Despite a 10% variance (54 and 44%), the Petitioners' were denied access to the system back-
end (servers) to ascertain the source of the variance.
130. He doubted whether each presiding ocer used their unique QR code to transmit the results of the
election from the various polling stations to the Constituency Tallying Centres and to the National
Tallying Centre.
131. He joined Ole Kina in deposing that declaration of election results could only be done when the
Commission was in possession of all Forms 34A and B, which was not the case during this election
because at the time of declaration. He emphasized that the results could only be called or declared when
the Commission was in possession of all the Form 34A and 34B and at the time of declaration; the
Commission had only 29,000 Forms 34A. He asserted that the results transmitted from the 11,000
polling stations out of 3G and 4G network coverage could not be ascertained and compromised up to 7
million votes. In his evidence, vote transmission could only be manual, not both manual and electronic.
132. I must however point out that his evidence cannot be considered as that of an expert witness because
he describes himself as part of the Petitioners party and in my view, supporting the averments in
the Petition as opposed to advancing expert opinion to the Court. This evidence must therefore be
examined with that caution in mind. Ngaah J, in Peter Kariuki Njenga v Gabriel P. Muchira & another
[2017] eKLR Civil Appeal, No 188 of 2010, referred to the following passage on expert evidence:
In Cross on Evidence 5th Edition at page 446, the following passage from the judgment
of President Cooper in Davie versus Edinburgh Magistrates (1933) SC 34,40, is set out as
stating the functions of expert witnesses:
"Their duty is to furnish the judge or jury with the necessary scientic criteria for
testing the accuracy of the conclusions, so as to enable the judge or jury to form
their own independent judgment by the application of these criteria to the facts
put in evidence."
So an expert witness who hopes to carry weight in a court of law, must, before giving his
expert opinion:
1. Establish by evidence that he is specially skilled in his science or art.
2. Instruct the court in the criteria of his science or art, so that the court may itself
test the accuracy of his opinion and also form its own independent opinion by
applying these criteria to the facts proved.
3. Give evidence of the facts on which may be facts ascertained by him or facts
reported to him by another witness. [Emphasis supplied]
In response
133. The 1st and 2nd Respondents averred that:
(i) Transmission was completed in accordance with the electoral law and Regulations thereunder
and in terms of the decision of the Court of Appeal in the Maina Kiai case
(ii) The completion of the transmission of the image of Forms 34A was dependent on the
availability of 3G or 4G network coverage and where this was unavailable, alternative
mechanisms to ensure completion in transmission of the image of the Form 34A in areas that
lacked 3G or 4G network coverage, was established.
134. The 2nd Respondent swore that appropriate training had been completed before the KIEMS kits were
deployed for elections.
135. The CEO of the Commission, Mr Ezra Chiloba reinforced this assertion by deposing that more than
360,000 election ocials were recruited and trained across the country to conduct the elections.
a. It was the deponents testimony in response to the 1st petitioners Adavit that that the law was
amended vide the Election Laws (Amendment) Act, 2017 to provide for a period of four (4)
months within which to procure and put in place the KIEMs He averred that the 1st Petitioners
allegation in his adavit evidence that electronic electoral system may have been exposed to
risk of interference was speculative and untrue.
b. The cases referenced by the Petitioners were both led by other parties and the Commission
was enjoined to these causes on the basis of its role in electoral preparations. [See: Collins
Kipchumba Tallam v The Attorney General, Petition No 415 of 2016 and Dr Kenneth Otieno
v The AG & IEBC, Petition No 127 of 2017].
136. James Muhati, the 1st Respondents ICT Director referred to the History of Electronic Transmission in
Kenya and swore that section 44 of the Elections Act was amended (by inserting Section 44A to address
the concerns raised by failure of technology in the 2013 General Elections.
137. Mr Muhati deposed that the Commission and ETAC ensured that mechanisms to satisfy the
constitutional and Statutory while using the KIEMS were put in place by the Commission. He also
averred that the Commission, pursuant to section 44(5) of the Elections Act published the Elections
(Technology) Regulations 2017 on 21st April, 2017, 3 months before the general elections. He
deponed that the 1st respondent developed and implemented a policy to regulate the progressive use
of technology in the electoral process.
138. He swore that the transmission required 3G and 4G mobile network which was provided by three
Mobile Network Operators (MNOs) i.e. Safaricom Limited, Airtel Kenya Limited and Telkom Kenya
Limited. These providers were assigned zones of covered out of the thirteen zones established around
the country. Each zone was powered by two providers, one as a primary service provider and the other
as back-up. This was done to ensure consistency and accountability in operation and availability of
service. It was his testimony that in a zone where an MNO was neither a primary nor secondary service
provider, it was not expected to provide any results transmission system since KIEMS could only
accommodate two SIM cards. Accordingly, the Commission gave such provider the coordinates of
polling stations within the zones to enable the service provider prepare itself for the provision of results
transmission services. The zoning was to ensure eective data segmentation into manageable parts.
139. He averred that following a mapping exercise carried out by the Commission and analysis by the
service providers, it was ascertained that about 11,155 polling stations within the country were not
eectively covered by either 3G or 4G Network and this communication was sent out to the public vide
a Notice dated 6th August, 2017. As a result, it was averred that presiding ocers in these areas were
instructed to move to points where there was network coverage or in the alternative go physically to the
Constituency Tallying Centres in order to transmit the results. He further swore that the Commission
had made all the necessary arrangements to avail all Forms 34A in a public portal.
140. Regarding the security guarantees inbuilt within the KIEMS system, it was Mr Muhatis evidence that
there was:
i conguration of only pre-determined and authorized tablets for transmission which was under
constant round the clock automated monitoring,
ii secured network spectrum with a twin high-level perimeter rewall which ltered
unauthorized transmission,
iii. robust database management solution with recommended security options such as pre-
encryption or results;
iv. secure Virtual Private Network (VPN) and a granular role-based access control and user
management for the entire Result Transmission System (RTS) and the SIM cards used during
the exercise were disabled for voice and text messaging and had unique security features to
conduct the exercise. Any attempts to relay data from a SIM card other than those provided
by the service providers was easily detectible.
141. He further averred that the KIEMS kit was congured in such a way that it could not transmit data
which bore more registered voters than those specic to a particular polling station.
142. Brian Gichana Omwenga swore an Adavit in Response to the allegations in his capacity as the 3rd
Respondents Party Technical Advisor and a software and systems engineer, holding a Masters Degree
in Engineering Systems, Technology and Policy from the Massachusetts Institute of Technology (MIT)
on the issue of transmission. It was his evidence he elaborated that although the results keyed-into the
KIEMS kit would be accompanied by an image of Form 34A, in areas without 3G or 4G network
coverage, transmission of the scanned image of Form 34A would either delay or not be sent at all,
prompting the presiding ocer to deliver Form 34A physically to the Constituency Tallying Centre.
These Forms would thereafter be used to tally the results in Forms 34B.
143. Having laid out critical elements of the petitioners issue with the transmission of the results of the
Presidential election, I now turn to the analysis. The allegations, although in most part, bare of any
evidence (eg, the blanket allegation of 11000 polling stations without proper particulars, and the link
of tangential events such as publicly available law suits to the functioning of the system) present certain
critical areas for examination:
(i) What is the import of Sections 39, 44 and 44A as far as transmission of election results is
concerned?
(ii) Is technology a mandatory component of Kenyas electoral transmission process?
(iii) Is the Petitioners averment that technology was the only acceptable mode of election results
transmission accurate and that lack of 3G and 4G coverage in 11,000 polling stations
compromised over 7 million votes? What is the complementary mechanism provided under
Section 44A of the Elections Act?
144. The High Court (upheld by the Court of Appeal) has had a chance to consider the use of technology
in elections in Kenya and particularly, interpretation of Sections 39, 44 and 44A of the Elections Act
in a decision wwhose nal determination I concur with. In National Super Alliance (NASA) Kenya v
The Independent Electoral and Boundaries Commission & 2 Others, Constitutional Petition No 328
of 2017 (The NASA case), the High Court held that:
80. A plain interpretation of section 44A shows that the legislature intended the establishment of a
mechanism that is complementary to the one set out in section 44 of the Act. The system under
section 44 is an integrated electronic electoral system that enables biometric voter registration,
electronic voter identication and electronic transmission of results. It places emphasis on the
use of technology.
81. In the The Concise Oxford English Dictionary, Oxford University Press, 12th Edition 2011,
the word complementary means forming a complement or addition, … combining in such
a way as to form a complete whole or enhance each other while complement means a thing
that contributes extra features to something else so as to enhance or improve it…. That being
the plain and literal meaning of the word complementary, our view is that section 44A of the
Act presupposes a mechanism that will complement, add, enhance or improve the mechanism
already set out in section 44 of the Act.
82. It follows therefore that the complementary mechanism in section 44A need not be similar,
same, akin or parallel to the one set out in section 44 of the Act. All that is required for
that mechanism is that it should add to or improve the electronic mechanism in section 44
of the Act. But at the same time, be simple, accurate, veriable, secure, accountable and
transparent. It should allow the citizens to fully exercise their political rights under Article 38 of
the Constitution. This complementary mechanism only sets in when the integrated electronic
system fails.
145. While I nd the decision of the High Court quite compelling, I would, with respect, reinforce it by
applying the terms of the Constitution. The Honourable Justices only partially interpreted Section
44A and restricted themselves to the Elections Act without due regard to Articles 38 and 86 of the
Constitution. Having referenced the decision of this Court in Raila 2013 case, the High Court rightly
observed at paragraph 54:
54. It is clear from this judgment that when the electronic system fails there should be a fall-back
system to avoid the entire election falling into shambles
A situation not envisaged by Articles 38 and 86 (d) of the Constitution.
146. Article 86 of the Constitution lays down the parameters of voting in furtherance of the right to vote
in free and fair elections pursuant to Article 38 of the Constitution. The system of voting ought to
be simple, accurate, veriable, secure, accountable and transparent. It is peculiar that with regard to
voting, Article 86 does not make any direct reference to transmission of the election results. However,
transmission, as discussed in the foregoing paragraphs is an integral part of the electoral process. It
is the mode through which the results leave the polling station to the Constituency Tallying Centre
and the National Tallying Centre. In order to enable voting and give full eect to the right to
vote, appropriate structures must be set up. According to Article 86(d) of the Constitution, these
structures and mechanisms ought to eliminate electoral malpractice. The KIEMS system was one
such mechanism. the Constitution goes further and mandates that included in those appropriate
structures and mechanisms is the safe-keeping of election materials. This requirement completes the
dictates of accuracy, veriability, security, accountability and transparency of the election process.
But why does the Constitution emphasise on the safe-keeping of election materials as part of the
appropriate structures and mechanisms to eliminate electoral malpractice and what then ought to be
the interpretation of Sections 39(1)(C), 44 and 44A with reference to this provision?
[146A] These provisions provide as follows:
39. Determination and declaration of results
1. The Commission shall determine, declare and publish the results of an election
immediately after close of polling.
(1A) The Commission shall appoint constituency returning ocers to be responsible for—
i. tallying, announcement and declaration, in the prescribed form, of the nal

results from each polling station in a constituency for the election of a member
of the National Assembly and members of the county assembly;
ii. collating and announcing the results from each polling station in the
constituency for the election of the President, county Governor, Senator and
county women representative to the National Assembly; and
iii. submitting, in the prescribed form, the collated results for the election of the
President to the national tallying centre and the collated results for the election
of the county Governor, Senator and county women representative to the
National Assembly to the respective county returning ocer.
(1B) The Commission shall appoint county returning ocers to be responsible for
tallying, announcement and declaration, in the prescribed form, of nal results from
constituencies in the county for purposes of the election of the county Governor,
Senator and county women representative to the National Assembly.
(1C) For purposes of a presidential election the Commission shall —
a. electronically transmit, in the prescribed form, the tabulated results of an

election for the President from a polling station to the constituency tallying
b. tally and verify the results received at the national tallying centre; and
c. publish the polling result forms on an online public portal maintained by the
Commission.
(1D) The chairperson of the Commission shall declare the results of the election of the
President in accordance with Article 138(10) of the Constitution.
(2) Before determining and declaring the nal results of an election under subsection (1),
the Commission may announce the provisional results of an election.
(3) The Commission shall announce the provisional and nal results in the order in which
the tallying of the results is completed.
44. Use of technology
(1) Subject to this section, there is established an integrated electronic electoral system
that enables biometric voter registration, electronic voter identication and electronic
transmission of results.
(2) The Commission shall, for purposes of sub section (1), develop a policy on the
progressive use of technology in the electoral process.
(3) The Commission shall ensure that the technology in use under subsection (1) is simple,
accurate, veriable, secure, accountable and transparent.
(4) The Commission shall, in an open and transparent manner —
(a) procure and put in place the technology necessary for the conduct of a general
election at least one hundred and twenty days before such elections; and
(b) test, verify and deploy such technology at least sixty days before a general
election.
(5) The Commission shall, for purposes of this section and in consultation with relevant
agencies, institutions and stakeholders, including political parties, make regulations
for the implementation of this section and in particular, regulations providing for —
(a) the transparent acquisition and disposal of information and communication

technology assets and systems;
(b) testing and certication of the system;
(c) mechanisms for the conduct of a system audit
d. data storage and information security;
(e) data retention and disposal;
(f) access to electoral system software source codes;
(g) capacity building of sta of the Commission and relevant stakeholders on the
use of technology in the electoral process;
(h) telecommunication network for voter validation and result transmission;
(i) development, publication and implementation of a disaster recovery and

operations continuity plan; and
(j) the operations of the technical committee established under subsection (7). (
(6) Notwithstanding the provisions of section 109(3) and (4), the Commission shall
prepare and submit to Parliament, the regulations required made under subsection (4)
within a period of thirty days from the date of commencement of this section.
(7) The technology used for the purpose of the rst general elections upon the
commencement of this section shall —
a. be restricted to the process of voter registration, identication of voters and

results transmission; and
b. be procured at least one hundred and twenty days before the general election.
(8) For the purposes of giving eect to this section, the Commission shall establish a
technical committee of the Commission consisting of such members and ocers of
the Commission and such other relevant agencies, institutions or stakeholders as the
Commission may consider necessary to oversee the adoption of technology in the
electoral process and implement the use of such technology.
44A. Complementary mechanism for identication of voters

Notwithstanding the provisions of section 39 and section 44, the Commission shall put in
place a complementary mechanism for identication of voters and transmission of election
results that is simple, accurate, veriable, secure, accountable and transparent to ensure that the
Commission complies with the provisions of Article 38 of the Constitution. [Emphasis added]
147. The High Court kept a consistent eye on the essence of the Elections Act in general and Section 44 and
44A in particular with regard to engaging and protecting the right to vote. Technology is a means to
an end (a veriable election result) not an end in itself. In fact, the Court was aware of the enduring
need to always consider Article 38 and its reinforcing provisions while construing provisions in the
Elections Act when it referenced the German Federal Constitutional Courts Judgement of the Second
Senate in part:
bb) in a republic, elections are a matter for the entire people and a joint concern of all citizens.
Consequently, the monitoring of the election procedure must also be a matter for and a task of
the citizen. Each citizen must be able to comprehend and verify the central steps in the elections
reliably and without any special prior technical knowledge.
cc) The Public nature of the elections is also anchored in the principle of the rule of law. The public
nature of the states exercise of power, which is based on the rule of laws, serves its transparency
and controllability. It is contingent on the citizen being able to perceive acts of the state bodies.
This also applies as to the activities of the election bodies.
b. The principle of the public nature of elections requires that all essential steps in the
elections are subject to public examinability unless other constitutional interests justify
an exception. Particular signicance attaches here to the monitoring of the Elections
Act and to the ascertainment of the election result. An election procedure in which the
voter cannot reliably comprehend whether his or her vote is unfalsiably recorded and
included in the ascertainment of the election result, and how the total votes cast are
assigned and counted, excludes central elements of the election procedure from public
monitoring, and hence does not comply with the constitutional requirements.
c. Despite the considerable value attaching to the constitutional principle of the public
nature of elections, it does not ensue from this principle that all acts in connection
with the ascertainment of the election result must take place with the involvement
of the public so that a well-founded trust in the correctness of the elections can be
created…………
It is certainly ensured in these cases that the voters are in charge of their ballot and
that the result of the election can be reliably checked by the election authorities
or by interested citizens without any special prior technical knowledge…………. b)
Restrictions on possibilities for citizens to monitor the election events cannot be
compensated for by sample devices in the context of the type approval procedure
or in the selection of the voting machines specically used in the elections prior to
their deployment being subjected to verication by an ocial institution as to their
technical performance. The monitoring of the essential steps in the election promotes
well-founded trust in the correctness of the election certainly in the necessary manner
that the citizen himself or herself can reliably verify the election event.
For this reason, a comprehensive bundle of other technical and organizational security
measures (eg, monitoring and safekeeping of the voting machines, comparability of the
devices used with an ocially checked sample at any time, criminal liability in respect
of election falsications and local organization of the elections) is also not suited by
itself to compensate for a lack of controllability of the essential steps in the election
procedure by the citizen. Accordingly, neither participation by the interested public
in procedures of the examination or approval of voting machines, nor a publication
of examination reports or construction characteristics (including the source code of
the software with computer-controlled voting machines) makes a major contribution
towards ensuring the constitutionally required level of controllability and verication
of the election events.
Technical examinations and ocial approval procedures, which in any case can only
be expertly evaluated by interested specialists, relate to a stage in the proceedings which
is far in advance of the ballot. The participation of the public in order to achieve
the required reliable monitoring of the election events is hence likely to require other
additional precautions. [Emphasis Added]
148. However, a sharp deviation from this consistence is marked by the Courts opinion at paragraph 72,
in part:
72. Under sections 39 and 44 of the Act, the use of technology in our electoral system
is entrenched. Registration of voters, their identication at the point of voting and the
transmission of election results is purely electronic. However, the actual voting, tallying and
collating of votes is wholly manual.
I disagree with the High Courts conclusion that transmission of election results is purely electronic.
To maintain that standard would be to negate the purport of Section 44A of the Elections Act. A clear
understanding ought to be made of the components of our electoral system – whether electronic or
manual.
What constitutes the electoral system in Kenya?

[]. Article 83 of the Constitution provides that:
(1) …
(2) A citizen who qualies for registration as a voter shall be registered at only one registration
centre.
(3) Administrative arrangements for the registration of voters and the conduct of elections shall
be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for
election.
[]. Section 4 of the Elections Act, 2011 provides that the Independent Electoral and Boundaries
Commission (Commission) shall compile and maintain the Register of Voters. Section 5 of the
Elections Act, 2011 provides that:
(1) Registration of voters and revision of the register of voters under this Act shall be carried out
at all times …
(5) The registration ocer or any other authorised ocer referred to in subsection (3) shall, at
such times as the Commission may direct, transmit the information relating to the registration
of the voter to the Commission for inclusion in the Register of Voters.
[] Section 44 of the Elections Act, 2011 provides that:
(1) Subject to this section, there is established an integrated electronic electoral system that enables
biometric voter registration, electronic voter identication and electronic transmission of
results.
[] These provisions are the basis of registration of voters by the Commission. Registration of voters in
Kenya is conducted when the voter physically goes to the registration centre and his details are manually
inputted into an electronic system and his biometrics are taken as part of his identication mechanism
pursuant to Regulation 8 of the Elections (Registration of Voters) Regulations, 2012. This Regulation
provides that:
A register of voters shall contain biometric data and the particulars set out in Form A in the
Schedule.
Further Regulation 13A provides the process to be followed during the registration of a voter, in the
following terms:
Registration procedure
(1) A person who applies to be registered as a voter shall present his or her
identication document to the registration ocer stationed at a Registration
Centre of his or her choice. (2) The registration ocer shall, where the
applicant is qualied to be registered as a voter, issue the applicant with Form
A as set out in the Schedule.
(3) The applicant shall return the duly completed Form A to the registration
ocer and the registration ocer shall conrm the details in the form and enter
them in the biometric voter registration system and the Voters Record Book.
(note the lling of the form is manual)
(4) The applicant shall be issued with an acknowledgement slip upon registration.
[] The details of the voter are thereafter transmitted by the Registration ocer to the Commission for
compilation, pursuant to the Regulation 12. This Regulation provides as follows:
12. Certication of Register of Voters
1. Where as a result of operation of section 5 of the Act, the registration of voters has
been ceased, the Registration ocer shall compile the list of registered persons.
2. The registration ocer shall after eecting compilation of the register of voters relating
to the constituency submit his or her component for compilation by the Commission.
3. The Commission shall compile the register of voters comprising of components under
section 4 of the Act. (4) …
149. Therefore the registration is electronic, but it can only be done manually by the Registration Ocer
or another ocer designated to do the registration, hence a voter must physically present himself at
registration centre.
The voters details and biometrics are then manually inputted into the Register of Voters which by law
includes an electronic register. The denition section of the Elections Act, 2011 describes the Register
of Voters as:
“ [A] current register of persons entitled to vote at an election prepared in accordance with
section 3 and includes a register that is compiled electronically."
150. During the elections the voter goes to the polling station and uses his National Identication Card
as one means of identication and then undergoes a biometric voter identication process which is
electronic. If for any reason the system is not able to identify the voter using the biometrics then a
complementary manual system shall be applied in the identication of the voter, pursuant to Section
44A of the Elections Act, 2011.
152. Therefore there is a twin scheme of manual and electronic voter identication at the polling station
during the elections. Voting is also manual not electronic as voters mark their ballots and cast them into
the ballot boxes. Once the voting process ends at the polling station, the votes are manually counted
and the presidential election results recorded manually in the Form 34A by the Presiding Ocer.
153. Regulation 5 of the Elections (General) Regulations, 2012 unequivocally sets out the functions of the
presiding ocer in the following terms:
(1A) The functions of a presiding ocer shall be—
a. presiding over elections at an assigned polling station;
b. tallying, counting and announcement of results at the Polling station;
c. submitting polling station results to the Constituency returning ocer; and
d. electronically transmitting presidential results to the constituency, counties and

national tallying centers.
154. Therefore upon signing Form 34A and ensuring the same is signed by the agents of the candidates
present in the polling station, the presiding ocer manually inputs the results and the scanned Form in
the designated electronic kit and electronically transmits the results to the Constituency, County and
National Tallying Centres. The Kenya Integrated Election Management System (KIEMS) kit applied
for that purpose requires 3G or 4G network, as indicated by Learned counsel for the 1st respondent in
order to transmit the results. In the areas where that nature of network is not available, the presiding
ocer will be required to move to an area where that network is available in order to electronically
transmit the results. A copy of the Form containing the declared results is also pinned on the door of
the polling station.
155. It is clear that the counting of the votes and the declaration of the results at the polling station is
manual but the transmission is electronic. Nonetheless, by dint of Section 44A of the Elections Act,
2011 if the electronic transmission of the results fails then the presiding ocer will revert back to the
manual system of transmission in which case he will have to physically deliver the Form 34A to the
Constituency Returning ocer.
156. In like manner, the Constituency Returning Ocer upon receipt of the Forms 34A from the polling
stations in the constituency, will manually tally, collate and verify the results and complete the Form
34B. He will then send those results electronically to the County and National Tallying Centres. If
that fails, he will deliver them manually. Similarly, at the National Tallying Center the results are tallied,
collated and veried manually and the declaration of the winning presidential candidate is done. The
Certicate of Declaration of Results is then manually handed to the President-elect.
157. Kenyas electoral process cannot therefore be said to be purely electronic. It comprises of both manual
and electronic components. It is a rather ugly grouchy and reluctant mongrel of two very distinct
processes. In fact it is a largely manual system. It is therefore very distinct from electronic electoral
processes exhibited in foreign jurisdictions such as India, Australia, the United States of America,
Canada, and Brazil among others.
158. In India, for instance, the process of voter registration is now electronic since a voter is able to register
as a voter online by completing a form online and submitting it to the electoral body for registration.
The process of voting is done by use of Electoral Voting Machines and the votes are counted and tallied
electronically. There are no paper ballots.
158. In Australia the Parliamentary elections are conducted by an electronic voting system which uses
standard personal computers as voting terminals. Voters use a barcode to authenticate their votes.
The voting terminals are linked to a server in each polling location using a secure local area network.
However no votes are transmitted over a public network such as the internet. The votes are then
electronically counted and tallied. Again, there are no paper ballots.
159. In the United States of America voting is by way of optical-scan ballots or by direct- recording
electronic devices that record votes electronically. The votes are counted and tallied electronically.
Dominant in these jurisdictions where the electoral process is electronic is the electronic counting and
tallying of the votes -an element which we do not have in our electoral process.
160. The upshot is that in Kenya, the system of voting is partly manual and partly electronic with the option
of reverting to the manual processes should the electronic processes fail. However, the counting of
votes, tallying, collation and verication of the results is entirely manual.
161. An interpretation of Section 44A of the Elections Act is incomplete without due consideration to
Article 38 and 86(d) of the Constitution and Section 39 and 44 of the Elections Act. With respect,
the High Court considered it only in light of Section 44 advancing an incomplete conclusion. At
paragraphs 80-87, parts which I would construe dierently, the High Court held:
80. A plain interpretation of section 44A shows that the legislature intended the establishment of a
mechanism that is complementary to the one set out in section 44 of the Act. The system under
section 44 is an integrated electronic electoral system that enables biometric voter registration,
electronic voter identication and electronic transmission of results. It places emphasis on the
use of technology.
81. In the The Concise Oxford English Dictionary, Oxford University Press, 12th Edition 2011,
the word complementary means forming a complement or addition, … combining in such
a way as to form a complete whole or enhance each other while complement means a thing
that contributes extra features to something else so as to enhance or improve it.... That being
the plain and literal meaning of the word complementary, our view is that section 44A of the
Act presupposes a mechanism that will complement, add, enhance or improve the mechanism
already set out in section 44 of the Act.
82. It follows therefore that the complementary mechanism in section 44A need not be similar,
same, akin or parallel to the one set out in section 44 of the Act. All that is required for
that mechanism is that it should add to or improve the electronic mechanism in section 44
of the Act. But at the same time, be simple, accurate, veriable, secure, accountable and
transparent. It should allow the citizens to fully exercise their political rights under Article 38 of
the Constitution. This complementary mechanism only sets in when the integrated electronic
system fails.
83. It was the petitioners contention that the mechanism envisaged under section 44A is akin
to the one in section 44 of the Act; that the debate in Parliament did not indicate that the
complementary mechanism was to be manual. With greatest respect, we do not think that there
is any ambiguity in the language used in section 44A to resort to the Hansard of Parliament in
order to decipher the true intention of the legislature in this case. The language and meaning
in that section is plain and clear. To our mind, what was required of the respondent was to put
in place a mechanism that would complement the one set out in section 44 of the Act. The
particulars of the mechanism, whether electronic, manual, or any other mode was not expressly
provided in section 44A. If that were the intention of Parliament, nothing would have been
easier than to specify so.
84. One other thing that buttresses our position that the mechanism contemplated in section
44A of the Act is independent of the one set out in section 44 of the Act, is the use of the
words Notwithstanding the provisions of section 39 and section 44, …. The use of the term
'notwithstanding makes the mechanism in section 44A independent of what is contained in
sections 39 and 44. The authors of Strouds Judicial Dictionary of Words and Phrases 6th
Edition, London, Sweet and Maxwell 2000 at page 1732 have dened notwithstanding as
follows:
Notwithstanding: Anything in this Act to the contrary notwithstanding is

equivalent to saying that the Act shall not be an impediment to the measure, …
85. On the other hand, the Blacks Law Dictionary, 9th edition, Bryan and Garner, 2009, denes
the word notwithstanding to mean despite, inspite of. In this regard, the use of the term
notwithstanding in section 44A means that inspite of what the provisions of section 39 and
44 stipulate as to the mechanism in our electoral system, the respondent is to put in place a
mechanism to complement sections 39 and 44 of the Act. All that is required is that the said
mechanism be simple, accurate, veriable, secure, accountable and transparent; and, one which
will not disenfranchise the citizens.
86. We are fortied in our nding by the decision of the Supreme Court of India in Chandavakar
Rao v Ashalata Guram [1986] 4SCC 447. It was held-
-A clause beginning with the expression notwithstanding anything contained in this

Act or in some particular provision in the Act or in some particular Act or in any law
for the time being in force, or in any contract is more often than not appended to a
section at the beginning with a view to give the enacting part of the section in case of
conict an overriding eect over the provision of the Act or the contract mentioned
in the non-obstante clause. It is equivalent to saying that inspite of the provision of
the Act or any other Act mentioned in the non-obstante clause or any contract or
document mentioned the enactment following it will have its full operation or that
the provisions embraced in the non-obstante clause would not be an impediment
for an operation of the enactment.
87. Accordingly, our determination on what constitutes the components of the complementary
mechanism to be established under section 44A of the Act is: that the mechanism should be
separate but which is meant to improve or augment the mechanism already set out in section
44. That mechanism has to be simple, accurate, veriable, secure, accountable and transparent.
It must also comply with Article 38 of the Constitution, that is, it must ensure that every
citizens right to register as a voter, vote at an election or vie for political oce is safeguarded.
161. Article 39(1)(C) mandates that for purposes of a presidential election, the Commission shall
electronically transmit, in the prescribed form, the tabulated results of an election for the President
from a polling station to the Constituency tallying centre. Technology however, per Section 44, is
used subject to the provisions of the entire section, meaning, that there are prerequisites to be met,
before technology can be employed. Parliament was keen to introduce conditions preceding the use of
technology in elections. These conditions are in-built in the provision as follows:
i. A policy for progressive use of technology in the electoral process (S. 44(2)
ii. The technology shall be simple, accurate, veriable, secure, accountable and transparent (S.
44(3) which is in terms of Art. 86(a) of the Constitution)
iii. In an open and transparent manner, procure the technology at least 120 days before such
elections
iv Deploy the technology at least sixty days before a general election
v Enact Regulations in consultation with relevant agencies, institutions, stakeholders, including

political parties for the aspects listed under Section 44 (5) (a-j)
vi. Technology shall be restricted to voter registration, identication and results transmission
vii. Establish a technical committee to oversee the adoption of technology and its implementation
for the conduct of the General elections.
162. It is imperative at this juncture to highlight that the use of technology is progressive. Kenyas electoral
system is a vivid recollection of progressive improvement. Emerging from the mlolongo (queing)
system that made no use of paper ballots, to the introduction of paper ballots, the development
of statutory transmission Forms and several layers of verication, to the maiden introduction of
technology during the 2013 General Elections whose partial failure inspired the introduction of
the KIEMS system which returned proper voter registration, identication and sucient vote
transmission with veriable paper trail. I reiterate the nding of this case in the Raila 2013 case, at
paragraph 237:
(237) From case law, and from Kenyas electoral history, it is apparent that electronic technology has
not provided perfect solutions. Such technology has been inherently undependable, and its
adoption and application has been only incremental, over time. It is not surprising that the
applicable law has entrusted a discretion to IEBC, on the application of such technology as
may be found appropriate. Since such technology has not yet achieved a level of reliability,
it cannot as yet be considered a permanent or irreversible foundation for the conduct of the
electoral process. This negates the Petitioners contention that, in the instant case, injustice,
or illegality in the conduct of election would result, if IEBC did not consistently employ
electronic technology. It follows that the Petitioners case, insofar as it attributes nullity to the
Presidential election on grounds of failed technological devices, is not sustainable.
163. The Petitioners and other interested parties sought guidance from the Courts on a signicant aspect
of these prerequisites, which were all settled in time for the elections.
164. In light of the provisions relating to the use of technology in elections and in transmission of the results
in a presidential election, Parliament introduced a non-obstante clause in the terms of Section 44A
mandating the Commission to put in place a complementary mechanism for identication of voters
and transmission of election results. According to Blacks Law Dictionary, 9th Edition, page 1155,
a non-obstante clause is one which gives eect despite any laws to the contrary or which precludes
interpretation contrary to the stated object or purpose.
165. The Constitution and the entire electoral code enliven this mechanism: the manual identication of
voters and manual transmission of results in the prescribed instruments of transmission, veriable by
various agents including an election Court using election material expressly referenced under Article 86
(d) and dened under Section 2 of the Elections Act. The essence of this section was to save the Sovereign
will of the people from the unpredictable nature of technology and to introduce a layer of veriability
to the electoral process. Parliament was clear, by the terms of Section 44A that the complementary
mechanism (which exists as the manual system of result transmission in the prescribed instruments of
declaration and whose nality is only questionable before an election Court) was sucient to deliver
a presidential election, as happened in areas where there was no 3G or 4G network coverage.
166. I have already laid out the provisions of Article 86(d) of the Constitution which provides for the security
of electoral materials. Section 2 of the Elections Act denes Election material to mean ballot boxes,
ballot papers, counterfoils, envelopes, packet statements and other documents used in connection with
voting and includes information technology equipment used for voting, the voting compartments,
instruments, seals and other materials and things required for the purpose of conducting an election.
These items exist. Their non-utility, compromise, interference or unavailability for purposes of
inspection was not challenged. Notwithstanding the shortcomings of technology in terms of Article
44A, these materials stood as a testament of the Elections Acts exercised by millions of Kenyans-an
exercise which the majority has termed, irrelevant.
167. The Constitution of Kenya is one drawn for eciency. It communicates purpose with timelines. In the
Mary Wambui case, this Court held that:
(75) The electoral history of Kenya is replete with cases of delay in nalizing matters, thereby
denying the voters the opportunity to have their chosen representatives in the organs of
democratic governance. It is clear that the sovereign power belongs to the people, and is
exercised either directly or through their democratically elected representatives in the State
Organs, which include Parliament and the Legislative Assemblies in County Governments.
The voters rights in this regard are quite clear, from the terms of the Constitution (Article 1).
168. Article 138 of the Constitution is replete with these directives of time: Art. 138 (5); Art. 138(9); and Art
138 (10). the Constitution gives the Chairperson of the Commission a maximum period of seven days
within which to declare the result of the election and deliver a written notication of the result to the
Chief Justice and the incumbent President. This imperative allows enough time for the Commission to
tally, verify the count of the results from the polling station, and declare the result pursuant to Article
138(4)(b) of the Constitution.
169. The complementary mechanism referenced in Section 44A of the Elections Act is a function of
verication. I am persuaded by the determination of the German Federal Constitutional Court in the
Judgement of the Second Senate that, the public nature of elections requires that all essential steps in
the elections are subject examinability, unless other constitutional interests justify an exception. This
examination must be possible, by the voter/public, without special expert knowledge. Therefore, the
voter in Kenya understands the function of the ballot and the critical importance of entries in the
statutory Forms 34A, 34B and 34C. Election results are displayed in the relevant forms after the close
of polling for all to see and scrutinize. Any mechanism that purports to complicate this simplicity is
at variance with the Constitution. Technology reinforces the ecient and fast translation of the will of
the people into an ascertainable return. It however does not supplant the critical primary instrument-
Form 34A generated at the primary locus of the election and challengeable only in a Court of law.
170. There was lingering doubt, throughout the proceedings on the gures that were being Streamed on
television. Counsel for the 1st Respondent submitted, to my satisfaction, that those gures (he referred
to them as statistics) bore no status in law following the decision of the Court in the Maina Kiai case.
I also note that the decision to Stream these statistics was proper to manage public expectation owing
to the history of elections in Kenya. The following recommendations from the Krieglar Report are
instructive:
RecommendationsIREC recommends that the media must have full access to this new
system, which will not be a problem if it is properly constructed. This will assist the media
in obtaining fully reliable results at high speed from all over the country and will also
place the ECK in the drivers seat in relation to providing the media with fast and reliable
data.IREC recommends that ample time be allowed for verifying provisional results, so that
they are declared nal/ocial only once there is no risk that errors may still be found or
non- frivolous objections raised. Most countries allow one to two weeks for this – there
must be sucient time to check the provisional results, which are given status as nal
results only when all objections have been considered, all checks and rechecks conducted
and the nal verdict issued by the proper authorities. Given a clear explanation of what a
provisional result is, there is no problem in making voters understand that election results
are so important that they can be declared nal only once they have been properly scrutinised
and checked.
171. In my view, the claim of a consistent 11% variance between the results for the 3rd Respondent and the 1st
Petitioner in my view was not proved (reference to hacking is analysed in the part on Orders of Access
to Information).
172. Having determined that failure of technology could not supplant the will of the people, recorded in
veriable ballots and other election material and the results declared in (a) available (b) ascertainable
(c) unchallenged (d) proper statutory instruments of declaration, it is my opinion that the Petitioners
case to exclude results from 11,000 polling stations which were out of 3G and 4G network would be
an aront to the Constitution and the right to franchise.
Presidential Election Vote Tally: Are Rejected Votes Relevant In Computing Percentages?
The Legal Importance of Percentages in the presidential vote tally

173. The controversy surrounding the Presidential Election 2007 was based on a number of factors
including the perception of what constitutes a popular winning candidate. the constitutional
framework adopted in August 2010 sought to address this concern by introducing a possible two tier
election for the position of President.
In accordance with Article 138(4) of the Constitution, a candidate shall be declared elected as President
if the candidate receives more than half of all the votes cast in the election; and at least twenty-ve per
cent of the votes cast in each of more than half of the counties. This means that in order for a candidate
to be declared President-elect, he/she must receive more than fty (50) per cent of the votes cast in the
election, or what has been commonly referred to as the threshold of 50 plus 1.
174. If no candidate meets this threshold, then fresh elections must be held at which only the two candidates
with the highest number of votes in the rst round will participate. In this second round, it is the
candidate who receives the largest number of votes or a simple majority, who will be declared President-
elect.
175. Therefore percentage points play a critical role in determining the winner of a presidential election in
the rst round and whether there will be a second round of elections. Consequently, any factor that
would aect the percentage of votes attained by a candidate needs to be addressed.
The Petitioners Case

176. According to the Petitioners, the number of rejected votes accounted for at least 2.6% of the total votes
cast and aected the nal result of the Presidential election. It was the Petitioners averment that the
exclusion of spoilt votes from the nal percentage computation of the Presidential election results,
rendered voting by a number of voters, irrelevant.
In that respect, the Petitioners sought the following reliefs:
a. A specic order for scrutiny of the rejected and spoilt votes;
b. A declaration that the rejected and spoilt votes count towards the total votes cast and in the
computation of the nal tally of the Presidential election.
The Law
177. In their written pleadings the Petitioners refer to the following applicable sections of the law and the
Constitution:
a. Article 1-Sovereignty of the Kenyan people;
b. Article 2-The Supremacy of the Constitution;
c. Article 4-Establishment of the Kenyan Republic as a multi-party State founded on the national
values and principles of governance referred to in Article 10 of the Constitution;
d. Article 10-National values and principles of governance
e. Article 38 guaranteeing every citizen the right to exercise their political rights.
f. Article 81 (e)(v) read together with Section 39 of the Elections Act and Regulations thereunder
which undergird the conduct of free and fair elections administered in an impartial, neutral,
ecient, accurate and accountable manner.
g. Article 86 which requires that at every election, the Independent Electoral and Boundaries
Commission shall ensure that—the voting method is simple, accurate, veriable, secure,
accountable and transparent; votes cast are counted, tabulated and the results announced
promptly by the presiding ocer at each polling station; the results from the polling stations
are openly and accurately collated and promptly announced by the returning ocer; and
appropriate structures and mechanisms to eliminate electoral malpractice are put in place,
including safekeeping of election materials.
h. Article 88 establishing the Independent Electoral and Boundaries Commission;
i. Article 138 outlining the procedure at an election petition.
j. Article 140-Questions as to the validity of presidential election
k. Article 163-The Supreme Court
l. Article 249-The objects, authority and funding of commissions and independent oces.
Issues for determination

178. The Petition outlines the following issues for determination:
(i) whether the colossal 2.6% of the total votes cast (constituting the number of rejected votes)
substantially aects and/or invalidates the count and tally of the Presidential election; and
(ii) whether the total number of rejected votes should be considered in ascertaining whether any
candidate met the constitutional threshold.
Analysis
179. A similar question of rejected votes arose in Supreme Court Petition No 5 of 2013 (See paragraphs
258 to 285). This Court considered the meaning of all votes cast and whether these included
rejected votes? or were limited to the properly marked ballots which gured in the vote-tally for the
individual candidates. The Court considered the provisions of the Constitution of Kenya, 1969 and the
Constitution of Kenya, 2010 specically, reference to valid votes cast in determining the winner of an
election in the previous constitutional dispensation (Section 5 (5)(e) and all votes cast in Article 138(4)
of the Constitution of Kenya, 2010.
180. The Petitioners case is that all votes cast include rejected and spoilt votes (sic).
The ratio in the Raila 2013 caseOdinga v IEBC & 3 Others Supreme Court Petition No 5 of 2013
181. Analysis of this issue ought to commence with the question posed at paragraph 262 of Supreme Court
Petition No 5 of 2013:
Is it intended, in the Constitution of Kenya, 2010 that the expression more than half of all
the votes cast should mean, literally, all the ballot papers that were marked and cast into the
ballot box Or should it mean only all the valid votes that were cast, and were counted in
favour of one candidate or another?
This Court held that:
The Elections (General) Regulations 2012 make no provision for rejected votes, though they
provide for rejected ballot papers:absenting a distinction between a vote and a ballot paper.
A ballot paper marked and inserted into the ballot-box is perceived as a vote, and becomes
either valid or rejected, depending on the electors compliance with the applicable standards
(see paragraph 281).
182. A non-compliant ballot paper yields a rejected vote which is invalid and therefore confers no advantage
upon any candidate. Due to its numerical inconsequence on any candidates nal tally, it should not be
considered while computing the nal percentage outcomes in a Presidential election.
Further analysis on the basis of the current Petition

183. The Elections (General) Regulations 2012 denes a rejected ballot paper as a ballot paper rejected in
accordance with regulation 78. Regulation 78-Rejected ballot papers-provides that:
(1) Every rejected ballot paper shall be marked with the word rejected by the presiding ocer, and,
if an objection is made by a candidate or an agent to the rejection, the presiding ocer shall add
the wordsrejection objected to and shall be treated as rejected for the purpose of the declaration
of election results at the polling station.
(2) The presiding ocer shall mark every ballot paper counted but whose validity has been
disputed or questioned by a candidate or an agent with the word disputed but such ballot
paper shall be treated as valid for the purpose of the declaration of election results at the polling
station.
(2A) The presiding ocer shall make a decision on the validity of the disputed ballot paper under
sub regulation (2) and award it to a candidate and such decision shall be nal.
(3) After the counting of votes is concluded, the presiding ocer shall draw up a statement in
Form 41 set out in the Schedule showing the number of rejected ballot papers under such of
the following heads of rejection as may be applicable—
a. want of security feature;
b. voting for more than one candidate;
c. writing or mark by which the voter might be identied; or
d. unmarked or void for uncertainty, and any candidate, counting agent or observer shall,
if he or she so desires, be allowed to copy that statement.
When/how is a ballot rejected?

Regulation 77 provides guidance on the rejection of ballot papers. It provides that:
1. At the counting of votes at an election, any ballot paper:
a. which does not bear the security features determined by the commission;
b. on which votes are marked, or appears to be marked against the names of, more than one candidate;
c. on which anything is written or so marked as to be uncertain for whom the vote has been cast;
d. which bears a serial number dierent from the serial number of the respective polling station and which
cannot be veried from the counterfoil of ballot papers used at that polling station; or
e. is unmarked…shall subject to regulation (2) be void and shall not be counted.
When is a vote cast?

184. As determined in Supreme Court Petition No 5 of 2013, the Regulations make no provision for
rejected votes. However, they do provide for rejected ballot papers, spoilt ballot papers, stray ballot
papers, and disputed ballot papers. This classication is consistent on the use of the term ballot paper
and outlines the manner in which these ballots are treated by the presiding ocers.
Section 2 of the Elections Act;
ballot paper means a paper used to record the choice made by a voter and shall include an
electronic version of a ballot paper or its equivalent for purposes of electronic voting;
Ballot papers constitute election material and are required for the purpose of conducting an
election while election results means the declared outcome of the casting of votes by voters at
an election. (Section 2 of the Elections Act). Casting of votes is an integral part of generating
election results. In terms of Article 138 (2)(c): In a presidential election- after counting the
votes in the polling stations, the Independent Electoral and Boundaries Commission shall
tally and verify the count and declare the result.
185. In line with the decision of this Court in Supreme Court Petition No 5 of 2013 spoilt ballots are
those which are not placed in the ballot box but in fact are cancelled and replaced where necessary by
the Presiding Ocer in a polling station. This is unlike rejected and disputed ballots, which although
placed in the ballot box, are declared disputed or invalid by the Presiding Ocer for a range of reasons
as enumerated in Regulations 77 and 78.
186. Regulation 69 (2) provides that: A voter shall, in a multiple election, be issued with the ballot papers
for all elections therein at the same time and shall after receiving the ballot papers— (a) cast his or her
votes in accordance with regulation 70 without undue delay.
Regulation 70 outlines the method of voting:
1. A voter shall, upon receiving a ballot paper under regulation 69(2)—
a. go immediately into one of the compartments of the polling station and secretly mark
his or her ballot paper by putting a cross, a tick, thumbprint or any other mark in the
box and column provided for that purpose against the name and the symbol of the
candidate for whom that voter wishes to vote; and
b. fold it up so as to conceal his or her vote, and shall then put the ballot paper into the
ballot box in the presence of the presiding ocer and in full view of the candidates or
agents.
2. The voter shall after following the procedure specied in sub-regulation (1) put each ballot
paper into the ballot box provided for the election concerned.
What is a vote?
While the term vote is neither dened in the Constitution nor the Elections Act, Blacks law dictionary denes it
as the expression of ones preference or opinion by ballot, show of hands or other type of communication.
What is to cast?
Similarly, although the Constitution does not dene the term cast, Blacks law dictionary denes cast as to
formally deposit (a ballot) or signal ones choice.
Therefore, the act of a voter secretly marking his/her ballot paper by putting a cross, a tick, thumbprint or any
other mark in the box and column provided for that purpose against the name and the symbol of the candidate
for whom the voter wishes to vote, constitutes, a vote. However, that vote only counts to the nal computation
and is deemed cast, if the elector complies with the applicable standards elaborated under the Constitution, and
the electoral law and regulations.
187. In certain instances, at the time the voter places his/her marked ballot paper in the ballot box, it
remains a ballot, that can be rejected, unless, the voter has satised the requirements necessary to render
their intention, a vote cast. This ballot paper however bears a mark against the name and symbol of
the person whom the voter wishes to vote. The process of marking the ballot paper is therefore an
expression of the voters wish/will to elect a particular candidate. This act, alongside other enabling
electoral processes such as voter registration comprise the voters exercise of his/her political rights in
line with Article 38 (2) of the Constitution.
188. Regulation 76 claries is position more succinctly:

Regulation 76-Counting of votes:
1. The presiding ocer shall, in the presence of the candidates or agents—
a. open each ballot box and empty its contents onto the counting table or any other
facility provided for the purpose and, shall cause to be counted the votes received by
each candidate; and
b. record the total number of votes cast in favour of each candidate.
2. Each ballot paper shall be counted as follows—
a. the presiding ocer shall in respect of every ballot paper, announce the candidate in
whose favor the vote was cast;
b. display to the candidates or agents the ballot paper suciently for them to ascertain
the vote; and
c. put the ballot paper at the place on the counting table, or other facility provided for
this purpose, set for the candidate in whose favor it was cast.
3. The presiding ocer shall record the count of the vote in a tallying sheet in Form 33 set out
in the Schedule.
4. A candidate or an agent shall have a right to—
a. dispute the inclusion in the count, of a ballot paper; or
b. object to the rejection of a ballot paper, where upon the presiding ocer may decide
to uphold or reject the complaint and act as provided under regulation 80.
In order for a ballot to translate into a veriable vote (a vote cast), it must be clear in whose favour the
vote was cast without identifying the voter.
Meaning, that a vote is cast only when a presiding ocer, during counting, declares that the intention
of the voter is clear and that the vote is made in favour of a particular candidate. The intention of the
voter in a voting process that is by secret ballot is a core component of an individuals political right
pursuant to Article 38 of the Constitution.
Therefore:
(i) Spoilt ballots do not constitute votes eligible to be included in the tally of the nal results in
a presidential election. Regulation 71 which provides for spoilt ballot papers is clear on this
position:
A voter who has inadvertently dealt with his or her ballot paper in such a manner that it cannot be
conveniently used as a ballot paper may, on delivering it to the presiding ocer and providing to the
satisfaction of such ocer the fact of the inadvertence, obtain another ballot paper in the place of the
ballot paper so delivered and the spoilt ballot paper shall be immediately cancelled and the counterfoil
thereof marked accordingly.
(i) Rejected ballots in accordance with Regulations 77 and 78 and are void and not counted unless;
in terms of Regulation 77 (2):
-a ballot paper on which a vote is marked—
a. elsewhere than in the proper place;
b. by more than one mark; or
c. which bears marks or writing which may identify the voter, shall not by that reason
only be void if an intention that the vote shall be for one or other of the candidates,
as the case may be, clearly appears, and the manner in which the paper is marked does
not itself identify the voter and it is not shown that the voter can be identied thereby.
189. Viewed purposively, it can be concluded that Regulations 2, 69, 70, 71, 77 and 78 exclude rejected
ballots from the total votes cast; which are considered for purposes of computing the nal results in
a presidential election.
Do the Regulations conform to the provisions of the Constitution as set out in Article 86(b) and
138(4) of the Constitution?
190. Article 86 (b) of the Constitution provides that;
At every election, the Independent Electoral and Boundaries Commission shall ensure that
a. …
b. the votes cast are counted, tabulated and the results announced promptly by
the presiding ocer at each polling station.
Article 138(4) of the Constitution further provides that;
A candidate shall be declared elected as President if the candidate receives
a. more than half all the votes cast in the election; and
b. at least twenty-ve percent of the votes cast in each of more than half of the
counties.
191. The Petitioners' logic collectivizing all votes as cast and therefore applicable in computing the nal
results of a presidential election, does not distinguish the Presidential election from other elections
held on the same day. This reasoning accepts that stray ballots also ought to form part of the votes
considered in computing the nal percentages. A stray ballot paper means ballot a paper cast in the
wrong ballot box (Regulation 2)
192. If any ballot for another election, for instance, Senate or Gubernatorial is placed in the Presidential
ballot box, then that vote is not cast in the Presidential election. It is for all intents and purposes, a
foreign object that cannot be considered a vote cast in that election. Consequently, it cannot be taken
into account when considering the total number of votes cast in that election. Rejected ballots belong
to no candidate. This however, is not to understate the statistical need to record rejected ballots. Such
statistics may be helpful in assessing voter turnout and also acting as a barometer for evaluating civic
education programmes for voters.
G. Burden of Proof
193. It is trite law that whoever alleges must prove. Section 107 of the Evidence Act, Chapter 80 Laws of
Kenya stipulates this in the following terms:
1. Whoever desires any court to give judgment as to any legal right or liability dependent on the
existence of facts, which he asserts, must prove that those facts exist.
2. When a person is bound to prove the existence of any fact it is said that the burden of proof
lies on that person.
Further Section 109 in narrowing down to proof of particular facts, stipulates:
The burden of proof as to any particular fact lies on the person who wishes the court to
believe in its existence, unless it is provided by any law that the proof of that fact shall lie
on any particular person.
194. Section 110 further provides that:
The burden of proving any fact necessary to be proved in order to enable any person to give
evidence of any other fact is on the person who wishes to give such evidence.
195. Regarding the incidence of burden, Section 108 provides that:
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence
at all were given on either side.
196. This Court had the opportunity of pronouncing itself on the issue of burden of proof in a Presidential
election petition in Raila 2013. It held [paragraph 195]:
There is, apparently, a common thread in the foregoing comparative jurisprudence on

burden of proof in election cases. Its essence is that an electoral cause is established much
in the same way as a civil cause: the legal burden rests on the petitioner, but, depending on
the eectiveness with which he or she discharges this, the evidential burden keeps shifting.
Ultimately, of course, it falls to the Court to determine whether a rm and unanswered case
has been made.
197. The Court further held [paragraph 203] that
a petitioner should be under obligation to discharge the initial burden of proof, before the
respondents are invited to bear the evidential burden.
The Court cited with armation the Canadian case, Opitz v Wrzesnewskyj 2012 SCC 55-2012-10-256
where it was thus stated in the majority opinion:
An applicant who seeks to annul an election bears the legal burden of proof throughout……
However, the Court qualied this position by nding that the burden of proof once discharged by the
petitioner, shifts to the respondents to disprove the claims made. It proceeded to specify what exactly
the petitioner would be required to do to discharge that legal burden holding [at paragraph 196 & 197]:
Where a party alleges non-conformity with the electoral law, the petitioner must not only
prove that there has been non-compliance with the law, but that such failure of compliance
did aect the validity of the elections. It is on that basis that the respondent bears the
burden of proving the contrary. This emerges from a long- standing common law approach
in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite
et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So,
the petitioner must set out by raising rm and credible evidence of the public authoritys
departures from the prescriptions of the law.
[198] IEBC is a constitutional entity entrusted with specied obligations, to

organize, manage and conduct elections, designed to give fullment to the
peoples political rights [Article 38 of the Constitution]. The execution of
such a mandate is underpinned by specied constitutional principles and
mechanisms, and by detailed provisions of the statute law. While it is
conceivable that the law of elections can be infringed, especially through
incompetence, malpractices or fraud attributable to the responsible agency, it
behooves the person who thus alleges, to produce the necessary evidence in the
rst place – and thereafter, the evidential burden shifts, and keeps shifting.
198. It is therefore clear that in an election petition the burden of proof at the very onset lies on the
petitioner to prove the facts that he alleges. Once the petitioner discharges that burden it shifts to the
respondent(s) to rebut the claims made. This decision was cited with armation in Munya 2 when
the Court stated:
178. One of the grounds for impugning the judgment of the Court of Appeal was that the Court
shifted the burden of proof from the petitioner to the 2ndand 3rd respondents, contrary to the
holding by this Court in Raila Odinga and Another v IEBC. Regarding the burden of proof,
this Court held that:
…a petitioner should be under obligation to discharge the initial burden of proof

before the respondents are invited to bear the evidential burden. The threshold
of proof should in principle, be above the balance of probabilities, though not as
high as beyond-reasonable-doubt. Where a party alleges non-conformity with the
electoral law, the petitioner must not only prove that there has been non-compliance
with the law, but that such failure of compliance did aect the validity of the
elections. It is on that basis that the respondents bear the burden of proving the
contrary.
179. We arm that this statement represents the legal position regarding the question of burden of
proof in election petitions.
199. This Court elaborated on the distinction between the legal burden and the evidentiary burden, noting
that the legal burden is the initial burden on the petitioner to prove the facts pleaded in the petition.
Once the petitioner discharges that legal burden to the standard required, then the burden shifts to the
respondent to disprove those claims; that being the evidentiary burden. The Court held [paragraph
182]:
The allegation that the total number of votes cast exceeds the number of registered voters
is such a serious one, that an election court would not treat it lightly. If proved, such an
occurrence would call into question the integrity of the electoral process. The person who
makes such an allegation must lead evidence to prove the fact. She or he bears the initial
legal burden of proof which she or he must discharge. The legal burden in this regard is not
just a notion behind which any party can hide. It is a vital requirement of the law. On the
other hand, the evidential burden is a shifting one, and is a requisite response to an already-
discharged initial burden. The evidential burden is the obligation to show, if called upon to
do so, that there is sucient evidence to raise an issue as to the existence or non-existence
of a fact in issue [Cross and Tapper on Evidence, (Oxford University Press, 12thed, 2010,
page 124)]. In the Raila case, this Court echoed this trite principle (paragraph 195 of its
judgment) when it remarked:
…an electoral cause is established much in the same way as a civil cause: the legal
burden rests on the petitioner, but, depending on the eectiveness with which he
or she discharges this, the evidential burden keeps shifting. Ultimately, of course,
it falls to the Court to determine whether a rm and unanswerable case has been
made [emphasis supplied].
200. The petitioner must discharge the initial legal burden for the 1st Respondent to be under the
evidentiary burden with respect to the register and the declared results. In that regard, this Court, in
Munya held that [paragraph 188]:
[T]he evidential burden regarding the contents of the register and declared results lies on
the IEBC; save that this burden is activated, in an election petition, only when the initial
legal burden has been discharged. [Emphasis supplied]
201. In Vashist Narain Sharma v Dev Chandra & others, 1954 AIR 513; 1955 SCR 509 (Vashist Narain)
the Supreme Court of India, with regard to the burden of proong an election should be annulled on
the ground that it did not conform with written law, held that –
the volume of opinion preponderates in favour of the view that the burden lies upon the
[petitioner].
202. In instances in which the respondent admits certain facts alleged by the petitioner, the burden of proof
is deemed to have been discharged by the petitioner but only with respect to the specic facts admitted.
The Supreme Court of India has had the opportunity to pronounce itself of this aspect in Joshna Gouda
v Brundaban Gouda & another, SC Civil Appeal No 15174 of 2011. It held [paragraph 18]:
“ An admission must be clear and unambiguous in order that such an admission should relieve
the opponent of the burden of proof of the fact said to have been admitted."
In the same matter the Court held that since the petitioner at the trial Court had failed to discharge
the burden cast upon him the election petition had to fail.
203. In Vashist Narain (above) the Court in emphasizing the grave need for the petitioner to discharge the
burden of proof before an election is upset, held:
“ If the petitioner is unable to adduce evidence in a case such as the present, the only
inescapable conclusion to which the Tribunal can come is that the burden is not discharged
and that the election must stand. Such result may operate harshly upon the petitioner
seeking to set aside the election …. but neither the
Tribunal, nor this Court is concerned with the inconvenience resulting from the operation
of the law. How this state of things can be remedied is a matter entirely for the Legislature
to consider. The English Act to which we have referred presents no such conundrum and
lays down a perfectly sensible criterion upon which the Tribunal can proceed to declare
its opinion. It directs the Tribunal not to set aside the election if it is of opinion that the
irregularity has not materially aected the result.
204. The Supreme Court of India shed light on the sacred nature of an election by virtue of the fact that
it is the expression of the will of the people which the Court is enjoined to guard jealously and void
the declared results only upon proof illegal practices supported by cogent evidence. These principles
were thus enunciated in Rahim Khan vs Khurshid Ahmed & Ors, 1975 AIR 290, 1975 SCR (1) 643
in which the Supreme Court of India held:
“ We have therefore to insist that corrupt practices, such as are alleged in this case, are examined
in the light of the evidence with scrupulous care and merciless severity. However, we have
to remember another factor. An election once held is not to be treated in a light-hearted
manner and defeated candidates or disgruntled electors should not get away with it by ling
election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing
a serious element of uncertainty in the verdict already rendered by the electorate. An election
is a politically sacred public act, not of one person or of one ocial, but of the collective
will of the whole constituency. Courts naturally must respect this public expression secretly
written and show extreme reluctance to set aside or declare void an election which has
already been held unless clear and cogent testimony compelling the Court to uphold the
corrupt practice alleged against the returned candidate is adduced. Indeed election petitions
where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal
nature wherein strict proof is necessary. The burden is therefore heavy on him who assails
an election which has been concluded.‘‘
205. Therefore the petitioner must discharge the burden of proof in order to succeed in their pursuit
to invalidate the declared results. The petitioner is not only required to prove that the irregularity
was committed but also that the irregularity materially aected the election result. Section 83 of the
Evidence Act, 2011 specically requires that no election shall be declared void by reason of non-
compliance with written law if it appears that the election was conducted in accordance with the
Constitution and with written law or that the non- compliance did not aect the result of the election.
The implications of this provision are addressed in detail later on in this opinion.
H. Standard of Proof
206. In electoral oences the standard of proof was held by this Court in Raila 2013 to be higher than
balance of probabilities by below beyond reasonable doubt.
The Court citing with approval various authorities held [paragraph 203]:
The lesson to be drawn from the several authorities is, in our opinion, that this Court should
freely determine its standard of proof, on the basis of the principles of the Constitution,
and of its concern to give fullment to the safeguarded electoral rights. As the public body
responsible for elections, like other public agencies, is subject to thenational values and
principles of governance declared in the Constitution [Article 10], judicial practice must
not make it burdensome to enforce the principles of properly-conducted elections which
give fullment to the right of franchise. But at the same time, a petitioner should be under
obligation to discharge the initial burden of proof, before the respondents are invited to bear
the evidential burden. The threshold of proof should, in principle, be above the balance
of probability, though not as high as beyond-reasonable- doubt – save that this would not
aect the normal standards where criminal charges linked to an election, are in question. In
the case of data-specic electoral requirements (such as those specied in Article 138(4) of
the Constitution, for an outright win in the Presidential election), the party bearing the legal
burden of proof must discharge it beyond any reasonable doubt.
207. More specically, where a claim of electoral malpractice is made the standard of proof is one above
a balance of probabilities but below beyond reasonable doubt. Where a claim of commission of an
election oence is made the standard of proof is similar to that in a criminal matter – it is beyond
reasonable doubt. Where the claim relates to data-specic electoral requirements the standard of proof
is also beyond reasonable doubt.
208. Where the petitioner assails the declared results on the allegation that the returned candidate
committed election oences it is imperative for the petitioner to prove beyond reasonable doubt that
the returned candidate or his agents working under his instructions committed the alleged oence.
This Court in the Wetangula case was categorical that where an election oence is alleged in an election
petition the standard of proof is beyond reasonable doubt similar to that in criminal matters due to
the quasi-criminal nature of the cause. It held that [paragraph 120]:
[120] Now on account of this quasi-criminal aspect of bribery in elections, the oence is
to be proved beyond any reasonable doubt. The petitioner has to adduce evidence that
is cogent, reliable, precise and unequivocal, in proof of the oence alleged. We may draw
analogy with the Supreme Court of India decision in M. Narayana Rao v G. Venkata Reddy
& Others, 1977 AIR S.C 208, in which it was thus held:
". . . The charge of commission of corrupt practice has to be proved and

established beyond doubt like a criminal charge or a quasi-criminal charge, but
not exactly in the manner of establishment of guilt in the manner of a criminal
prosecution giving liberty to the accused to keep mum. The charge has to be
proved on appraisal of the evidence adduced by both sides especially by the
petitioner. . .
209. The petitioners alleged that contrary to Section 2 of the Elections Act, S 14 and 15 of the Election
Offences Act, the 3rd respondent, Cabinet secretaries and other public ocers blatantly misused state
resources in favour of specic candidates and the Jubilee party as a whole which as a result unfairly
skewed the playing eld in favour of the 3rd respondent and as such the presidential elections could
not be termed as free or fair. These they contended, amounted to gross violations of Articles 81(e), 232
and 73(2) the remedy of which could only be nullication of the said results.
210. Applying the principles espoused above it is clear that the onus is on the petitioners to prove beyond
reasonable doubt that the 3rd respondent committed the said electoral oences with detailed specicity
by way of cogent evidence; bare allegation of commission of the alleged oences would evidently fall
short of that standard.
211. In respect of the allegation that the Cabinet Secretaries committed the alleged electoral oences, the
petitioners must show rstly that oences were committed and that secondly, they were acting under
the instructions of the 3rd respondent – they must show the nexus between the person who is alleged to
have committed the oence and the returned candidate and they must have shown the full particulars
of the allegation. The Supreme Court of India in making a determination in Jagdev Smgli v Pratap
Singh Daulla, (A.I.R. 1965. S.C. 18), an election petition, in which it was alleged that the agents of the
returned candidate had committed corrupt practices the Court held that it must be proven not only
that the oence was committed but that it was committed by the returned candidate or his agents or
with the consent of the returned candidate – and the standard applicable is beyond reasonable doubt.
It observed:
“ It may be remembered that in the trial of an election petition, the burden of proving that the
election of a successful candidate is liable to be set aside on the plea that he was responsible
directly or through his agents for corrupt practices at the election, lies heavily upon the
applicant to establish his case, and unless it is established in both its branches, i.e. the
commission of acts which the law regards as corrupt, and the responsibility of the successful-
candidate directly or through his agents or with his consent for its practice not by mere
preponderance of probability, but by cogent and reliable evidence beyond any reasonable
doubt, the petition must fail."
212. A digest of the Election Law Reports Vols. XI to XXII 1955-60 underscores the requirement to furnish
full particulars of the alleged oences in the petition noting that where full particulars are not supplied
the Court should strike out those alleged oences whose full particulars have not been provided. That
has been set out in the following terms:
The requirement of full particulars is one that has got to be complied with, with sucient
fullness and clarication so as to enable the opposite party fairly to meet them - and they
must be such as not to turn the enquiry before the Tribunal into a rambling and roving
inquisition.
…
Where the petitioner had ample opportunity to get his petition amended for supplying full
particulars of a corrupt practice alleged in the petition and has not taken advantage of that
opportunity, the Tribunal would be justied in striking o the allegations relating to such
corrupt practice.
213. Section 2(c) of the Representation of People Act, 1951 of the Laws of India, denes corrupt practices
as any of the practices specied in Section 123 of the Act. The elaborate denition of various corrupt
practices under Section 123 are —bribery, undue inuence, appeal on the ground of religion, race,
caste, community or language and the use of appeal to religions or national symbols, promotion of
enmity or hatred between dierent classes of citizens on the ground of religion, race, caste, community
or language, propagation of sati, publication of false statements, hiring of vehicles or vessels, incurring
excessive expenditure, procuring the assistance of government servants, and booth capturing.
214. Where a petitioner imputes electoral oences on the part of the returned candidate the burden of proof
lies on the petitioner to prove the commission of the electoral oences by the returned candidate or by
his agents or by other persons with his consent, which claim must be supported by cogent evidence –
bare allegations, without more, that the oence was committed will not suce. If the evidence supplied
fails to meet the set standard the petition must fail. In Jagdev Smgli v Pratap Singh Daulla, (1965) AIR
183, 1964 SCR (6) 750 the Supreme Court of India in dealing with the issue of burden of proof and
standard of proof where it was alleged that the winning candidate had committed corrupt practices
during the election, held as follows:
“ It may be remembered that in the trial of an election petition, the burden of proving
that the election of a successful candidate is liable to be set aside on the plea that he was
responsible directly or through his agents for corrupt practices at the election, lies heavily
upon the applicant to establish his case, and unless it is established in both its branches
i.e. the commission of acts which the law regards as corrupt, and the responsibility of the
successful candidate directly or through his agents or with his consent for its practice not
by mere preponderance of probability, but by cogent and reliable evidence beyond any
reasonable doubt, the petition must fail."
215. Akhil Kumar (an Assistant Professor in the University of Rajasthan, Jaipur) in his journal article,
Election Laws and Corrupt Practice in India, International Journal of Multidisplinary Approach and
Studies observes that electoral oences are akin to criminal oences and therefore must be proved
strictly. He states:
[An] election may be avoided if corrupt practices have been committed. Attempts to
inuence may not be unlawful and not restrained unless corrupt intent or abuses of
inuence is established against the candidate or his election agent. Therefore, an allegation
of undue inuence must be proved as strictly as a criminal charge and the principle of
preponderance of probabilities would not apply to corrupt practice of undue inuence
envisaged by the Act. It is settled view that a charge of corrupt practice under the Act of
1951 has to be proved beyond reasonable doubt, because if this test is not applied a very
serious prejudice would be caused to the elected candidate who may be disqualied for a
period of six years from ghting any election.
216. I am persuaded that the petitioners failed to provide full particulars of the electoral oences that they
allege had been committed by the 3rd respondent. I would therefore have at that instance struck out all
the allegations of illegality from their petition for want of full particulars as required by law.
Alleged Electoral Oences

217. The petitioners alleged that various electoral oences were committed by the 3rd respondent in during
the electoral process. These are:
i. Bribery
ii. Intimidation
iii. Undue inuence
218. I have already addressed these allegations earlier in this opinion however I would like to pay particular
attention to the allegation that the Cabinet Secretaries breached the constitutional requirement not
to be involved in any political activities as enshrined in Chapter Six of the Constitution relating to
Leadership and Integrity, hence the declared results were vitiated.
219. The Leadership and Integrity Chapter of the Constitution provides for the conduct of State Ocers.
Article 80 of the Constitution mandates Parliament to enact legislation to provide to operationalize
that Chapter. It provides:
80. Parliament shall enact legislation—
a. establishing procedures and mechanisms for the eective administration of this

Chapter;
b. prescribing the penalties, in addition to the penalties referred to in Article 75, that may
be imposed for a contravention of this Chapter;
c. providing for the application of this Chapter, with the necessary modications, to
public ocers; and
d. making any other provision necessary for ensuring the promotion of the principles
of leadership and integrity mentioned in this Chapter, and the enforcement of this
Chapter.
220. In exercise of this mandate Parliament has enacted the Leadership and Integrity Act, which provides
in Section 23 as follows:
(1) An appointed State ocer, other than a Cabinet Secretary or a member of a

County executive committee shall not, in the performance of their duties—
a. act as an agent for, or further the interests of a political party or

candidate in an election; or
b. manifest support for or opposition to any political party or

candidate in an election.
(2) An appointed State Ocer or public ocer shall not engage in any political
activity that may compromise or be seen to compromise the political neutrality
of the oce subject to any laws relating to elections.
(3) Without prejudice to the generality of subsection (2) a public ocer shall not
—
a. engage in the activities of any political party or candidate or act

as an agent of a political party or a candidate in an election;
b. publicly indicate support for or opposition against any political

party or candidate participating in an election.
221. The law therefore is clear that Cabinet Secretaries are exempt from the prohibition that public ocers
should not engage in the activities of a political nature, and for good reason. It is to be observed that
Cabinet secretaries and County Executives members do serve at the pleasure of either the President or
Governor. They are political appointees with the express purpose of delivering the manifesto of their
appointing authority or his or her political party. This is an essential part of a political government
in any democracy. A change in the Presidency signals the immediate resignation or replacement of
these political appointees; not so with the rest of the civil service whose tenure is protected against the
vagaries of politics. This is also the reason why civil servants do not and should not participate in active
politics, as they should remain apolitical.
222. It was also alleged that the 3rd respondent and the Cabinet Secretaries gave donations to the Internally
Displaced Persons with a view to inuence them to vote for the 3rd respondent. These allegations were
full rebutted by the adavit of Engineer Karanja Kibicho who produced documents to prove that the
assistance given to the Internally Displaced Persons was in line with a work plan of the government
with a budget approval by Parliament in the previous nancial year and which was no prompted by
the aim to inuence the voters in favour of the 3rd respondent.
223. In the foregoing, I therefore nd that the Petitioners allegations on bribery, intimidation and undue
inuence are not proven.
I. Adavit Evidence: An Analysis.

224. The petition sets out the following as the alleged illegalities that were committed by the 1st and 2nd
respondent in conducting the electoral process:
a. Non-compliance with Articles 1, 2, 4, 10, 38, 81, 82, 86, 138, 140, 163, and 249 of the
Constitution.
b. Non-compliance with the Elections Act.
b. Non-compliance with the Regulations made under the Elections Act.
b. Non-compliance with the Electoral Code of Conduct.
225. In summary the particulars of the petitioners claims are that:
1. The 1st respondent by failing or neglecting to act in accordance with the Constitution subverted
the sovereign will of the people.
2. The Presidential Election was so badly done and marred with irregularities that it does not
matter who won.
3. The nature and extent of the aws and irregularities signicantly aected the results to the
extent that the 1st respondent cannot accurately and veriably determine the election results.
4. Section 83 of the Elections Act contemplates that where an election is not conducted in
accordance with the Constitution and the written law, then that election must be invalidated
notwithstanding the fact that the result may not be aected. The non- compliance with the
Constitution and the written law is by itself sucient to invalidate the Presidential Election.
5. Number of factors including the registration of voters and the rejected votes which accounted
for 2.6% of the total votes cast aected the Presidential Election results.
6. This Court in Raila 2013 in determining that spoilt votes cannot be counted in computing the
50% plus 1, relied on the opinion of the minority yet the majority in that decision held that the
total number of votes cast in an election refers to all votes cast whether valid or not.
7. The petitioners call upon this Court to reconsider its decision in Raila 2013 and correct itself.
8. The transmission of results from polling stations to the Constituency and National Tallying
Centre and from the Constituency to the National Tallying Centre was not simple, accurate,
veriable, secure, accountable, transparent, open and prompt which compromised and
aected the requirement of free and fair elections under Articles 81 of the Constitution.
9. By an internal circular dated 2July 5, 2017, the 1st Respondent adopted a procedure that was
contrary to and did not comply with the law as set out under Regulation 87(3) of the Elections
(General) Regulations made pursuant to Sections 39 and 109 of the Elections Act and Article
10. The 1st Respondent declared the result without verication of the results from over 10,000
polling station representing approximately 5 million voters.
11. The information in Forms 34A is not consistent with the information recorded in Forms 34B
as required and legitimately expected.
12. Forms 34B were not accurate and veriable and consequently invalid.
13. The additions and gures do not add up.
14. The nature and extent of the inaccuracies and inconsistencies in the tabulations is not clerical
but deliberate and calculated.
15. The inaccuracies and inconsistencies aect and account for at least 7 million votes.
16. At the time of declaration of the result, the 1st Respondent did not have 187 Forms 34B nor
did it publically display or avail the same for verication. The declaration of the nal result was
therefore invalid and illegal.
17. In numerous instances the 1st Respondent selectively manipulated, engineered and/or
deliberately distorted the votes cast and counted particularly in favour of the 3rd Respondent
thereby aecting the nal results tallied.
18. the 1st Respondent grossly inated the votes cast in favour of the 3rd Respondent thereby
19. There was massive and deliberate failure in operational transparency.
20. The 1st Respondent deliberately and intentionally disregarded the decision of the Court of
Appeal rendered in the case of Independent and Electoral Boundaries Commission v Maina
Kiai, Court of Appeal Civil No 105 of 2017 by:
a. failing to electronically collate, tally and transmit the results accurately as per the Court
decision;
b. failing to make the results at the polling stations nal as per the decision;
c. failing to ensure accurate, veriable and accountable results by posting varied,

contradictory and ever changing results in Forms 34A, 34B and in its portal even
at the time of ling this Petition; that without veriability the purported results are
unconstitutional and therefore invalid.
d. failing to ensure accurate, veriable and accountable nal result by declaring nal
results on August 11, 2017 before receiving all the results from all polling stations;
e. by colluding with the 3rd Respondent and ejecting the legitimate agents of the
Petitioners from various polling stations in the Central and Rift Valley Regions, the 1st
Respondent abdicated its responsibility of ensuring a transparent, impartial process of
voting, tallying and transmission of results;
f. By allowing in excess of 14,000 fatally defective returns from polling stations

representing in excess of 7 million votes, the 1st Respondent abdicated its responsibility
of delivering veriable results;
21. The votes cast in a signicant number of polling stations were not counted, tabulated and
accurately collated as required under Article 86(b) and 86(c) of the Constitution as read
together with the Elections Act.
22. The results as displayed in the 1st Respondents Forms 34B variously exclude substantial
numbers of polling stations within the constituencies and are incorrigibly inaccurate in
mathematical additions in favour of the 3rd Respondent.
23. The results contained in Forms 34B in respect of the Presidential Election are not the results
required under Article 86 and are therefore a nullity.
24. The Petitioners aver that contrary to Regulation 7(1)(c) of the Elections (General) Regulations
the 1st Respondent illegally and fraudulently established secret and ungazetted polling stations
wherefrom results were added to the nal tally thereby undermining the integrity of the
Presidential Election.
25. A signicant number of Forms 34B were executed by persons not gazetted as Returning
Ocers and not accredited as such by the 1st Respondent thereby rendering those results
invalid.
26. The results from over 10,000 polling stations transmitted to the National Tallying Centre
did not comply with the mandatory requirement set since they were not accompanied by the
electronic image of Forms 34A.
27. Forms 34B are contradictory, defective and bear fatal irregularities aecting 14,078 polling
stations out of 25,000 ForMs
28. The use of inconsistent and dierent forms and returns demonstrates lack of consistency,
uniformity, neutrality, impartiality and indicates and intention to manipulate the results and
the returns.
29. The 1st respondent is still in the process of altering and tampering with the Forms 34A and is
summoning its ocers to sign Forms 34A.
30. Some of the forms and returns are not signed as required by law and Regulations.
31. Some of the Forms 34B do not indicate the names of the Returning Ocer.
32. A substantial number of Forms 34A and 34B do not bear the IEBC stamp others do not bear
the signatures of the candidates agents nor the reason for refusing to sign.
33. A number of polling stations in dierent areas show the same person as presiding in those
stations.
34. In more than half of the 290 constituencies the returning ocers failed to indicate the number
of Forms 34A handed over to them as required by the law and the Regulations.
226. The petitioners in their petition made various further allegations upon which certain reliefs were
sought which included the nullication of the results declared for the Presidential Election. The
following is a summary of the assertions made:
1. By an internal circular dated July 25, 2017, the 1st Respondent adopted a procedure that was
contrary to and did not comply with the law as set out under Regulation 87(3) of the Elections
(General) Regulations made pursuant to Sections 39 and 109 of the Elections Act and Article
2. The 1st Respondent declared the result without verication of the results from over 10,000
polling station representing approximately 5 million voters.
3. The information in Forms 34A is not consistent with the information recorded in Forms 34B
as required and legitimately expected.
4. Forms 34B were not accurate and veriable and consequently invalid.
5. The additions and gures do not add up.
6. The nature and extent of the inaccuracies and inconsistencies in the tabulations is not clerical
but deliberate and calculated.
7. The inaccuracies and inconsistencies aect and account for at least 7 million votes.
8. At the time of declaration of the result, the 1st Respondent did not have 187 Forms 34B nor
did it publically display or avail the same for verication. The declaration of the nal result was
therefore invalid and illegal.
9. In numerous instances the 1st Respondent selectively manipulated, engineered and/or

deliberately distorted the votes cast and counted particularly in favour of the 3rd Respondent
thereby aecting the nal results tallied.
10. The 1st Respondent grossly inated the votes cast in favour of the 3rd Respondent thereby
11. There was massive and deliberate failure in operational transparency.
12. The 1st Respondent deliberately and intentionally disregarded the decision of the Court of
Appeal rendered in the case of Independent and Electoral Boundaries Commission v Maina
Kiai, Court of Appeal Civil No 105 of 2017 by:
a. failing to electronically collate, tally and transmit the results accurately as per the Court
decision;
i. to make the results at the polling stations nal as per the decision;
ii. to ensure accurate, veriable and accountable results by posting varied,

contradictory and ever changing results in Forms 34A, 34B and in its portal
even at the time of ling this Petition; that without veriability the purported
results are unconstitutional and therefore invalid.
iii. to ensure accurate, veriable and accountable nal result by declaring nal
results on 11 August 2017 before receiving all the results from all polling
stations;
b. By colluding with the 3rd Respondent and ejecting the legitimate agents of the
Petitioners from various polling stations in the Central and Rift Valley Regions, the 1st
Respondent abdicated its responsibility of ensuring a transparent, impartial process of
voting, tallying and transmission of results;
c. By allowing in excess of 14,000 fatally defective returns from polling stations

representing in excess of 7 million votes, the 1st Respondent abdicated its responsibility
of delivering veriable results;
227. The votes cast in a signicant number of polling stations were not counted, tabulated and accurately
collated as required under Article 86(b) and 86(c) of the Constitution as read together with the Elections
Act.
13 It was averred that the results as displayed in the 1st Respondents Forms 34B variously
exclude substantial numbers of polling stations within the constituencies and are incorrigibly
inaccurate in mathematical additions in favour of the 3rd Respondent.
14 It was also asserted that the results contained in Forms 34B in respect of the Presidential
Election are not the results required under Article 86 and are therefore a nullity.
15 The Petitioners aver that contrary to Regulation 7(1)(c) of the Elections (General) Regulations
the 1st Respondent illegally and 16 fraudulently established secret and ungazetted polling
stations wherefrom results were added to the nal tally thereby undermining the integrity of
the Presidential Election.
16 It was his assertion that a signicant number of Forms 34B were executed by persons not
gazetted as Returning Ocers and not accredited as such by the 1st Respondent thereby
rendering those results invalid.
228. The petitioners in support of their petition have led various adavits and in some of those adavits
are an array of documents and video clips annexed as evidence.
1.The adavit of the 1st Petitioner

229. The Adavit of the 1st petitioner makes averments on the same claims contained in the petition
and an additional deposition that the Presidential Election was compromised by intimidation and
improper inuence or corruption contrary to Articles 81(e)(ii) of the Constitution as read together
with the Elections Act and Regulations 3 and 6 of the Electoral Code of Conduct. Further, that the 3rd
respondent, with impunity, contravened the Rule of Law and the principles of conduct of a free and
fair election through the use of intimidation, coercion of public ocers and improper inuence of
voters.
230. To that adavit was one document annexed as evidence; a document indicating the areas that were
outside the 3G and 4G network coverage. The adavit indicates that further evidence in other
adavits serves as evidence in support of the matters deposed therein.
2. The adavit of the 2nd Petitioner

231. The adavit of the 2nd petitioner briey reiterates some of the claims contained in the petition.
However, it does not adduce any evidence in support of the claims made. The deponent states that
he relies fully on the evidence in the adavit of the 1st petitioner and in the adavit of Dr Nyangasi
Oduwo.
3. The adavit of Benson Wasonga

232. The deponent averred that there were irregularities in the declaration of the Presidential results by
the Chairperson of the Independent Electoral and Boundaries Commission (IEBC) vis-a-vis the
Forms 34C. He asserted that the actual summation of the total valid votes from the IEBC portal was
15,179,717, with Raila Odinga having 6,821,505 votes while Uhuru Kenyatta had 8,222,861 votes, and
the total rejected votes being 477,195 votes. However, the IEBC portal displayed the results as follows;
the total valid votes were 15,180,381, Raila Odingas votes amounted to 6,821,877 while Uhuru
Kenyattas votes were 8,223,163 and the total number of rejected votes was 403,495. He attached an
analysis of the number of rejected votes.
233. He deposed that the declaration of results for the election of the President at the National Tallying
Centre as per the Form 34C indicated the results as follows; the total valid votes are 15, 114,622, Raila
Odinga 6,762,224, Uhuru Kenyatta 8,203,290 and the total rejected votes were 81,685. His assertion
was that the actual variation of rejected votes between the actual results and those displayed at the IEBC
portal was 73,700 votes. His averment was that this was a violation of clear provisions of electoral laws
to the disadvantage of the other presidential candidates.
4. The adavit of Mohamed Noor Barre

234. Mohamed Noor Barre who is a resident of Mandera North Constituency, Mandera County swore that
he had been appointed as Presiding Ocer at Kalicha Primary School in Mandera North Constituency.
He averred that on 7th August, 2017 at around 5.00 pm, he convened with 70 other people, at the
Independent Electoral and Boundaries Commissions Oce in Mandera North Constituency. He
deposed that they were all informed that their names had been replaced by others for unexplained
reasons.
235. It was his testimony that elections proceeded the following day at Kalicha primary school polling
station. He averred that the said elections were conducted by strangers who were acting as presiding
ocers who were untrained and had not taken an oath of secrecy. He asserted that as a consequence,
Kalicha Primary School, polling station 2 of 2 polling stations, had a 100% voter turnout as all registered
voters numbering 594 voted.
236. Further, he asserted that, these gures were lled in at a tallying Centre at the Sub County
Commissioners Block contrary to a Court Order which had directed that the tallying centre should
be at Rhamu Arid Zone Primary School. It was his assertion that this kind of rigging happened
throughout Mandera County. He gave as evidence, documents to support his averments.
237. I am of the opinion that the evidence in Mr Mohamed Noor Barre did not meet the standard of
proof required since it comprised of bare allegations without any substantiation of the averrments
made with regard to the fact that he was the appointed presiding ocer, that the person who acted as
presiding ocer was not the one appointed initially, that there was rigging at the polling station and
that persons who were not supposed to vote were allowed to vote. This adavit evidence was rebutted
by the adavit of MaryKaren Kigen Sorobit.
5. The adavit of Ibrahim Mohamud Ibrahim

238. Ibrahim Mohamud Ibrahim a resident of Mandera North Constituency, Mandera County deposed
that he was appointed, trained and took oath to serve as a Presiding Ocer at Guticha Primary School
in Mandera North Constituency. He asserted that on 7th August, 2017 at around 5.00 pm, he as well
as 70 other people were summoned to the Independent Electoral and Boundaries Commissions Oce
in Mandera North and informed that their names had been replaced by others for unexplained reasons.
A protest arose and they reported the matter to Rhamu police station.
239. Further he averred that the elections took place on the following day at various polling stations
conducted by strangers who were acting as presiding ocers. It was his testimony that these strangers
had neither been trained nor taken oath of secrecy. It was his testimony that this opened voter numbers
to alteration at the Constituency Tallying Centre which was in the Sub County Commissioners oce
boardroom. He averred the Constitution of the tallying centre was against a court order which had
directed that the tallying centre should be at Rhamu Arid Zone. He took the stance that this kind of
rigging happened throughout Mandera County.
6. The adavit of Moses Wamuru

240. The deponent avers that on the August 8, 2017 he arrived at Thigingi Primary School in Kagaari North
Ward, Runyenjes Constituency where he found all the NASA agents locked out of the polling station.
He asserts that his eort to persuade the Presiding Ocer to allow the said agents back into the polling
station were unsuccessful. He avers that the NASA agents did not gain access into the polling station
until the voters in the queue protested. He further deposes that the said agents were later evicted from
the polling station at the time of counting. These averments are incredible given the fact that the Form
34A on record of Thigingi Primary School, polling station 01 bears the signature of an agent of the
Orange Democratic Movement aliated to the NASA coalition. The authenticity of that Form 34A
has not been challenged by the petitioners.
241. Similar, averments have been made with respect to the NASA agents at Gichera Primary School polling
station, Kagaari South Ward, Runyenjes Constituency, Embu County. Likewise, it is evident from the
Form 34A on record that the NASA agents signed the Forms 34A for both polling stations at Gichera
Primary School, as required by law. The authenticity of those forms was not challenged. In respect
of Siakago Girls Secondary School which was the Talling Centre for Mbeere North Constituency Mr
Wamuru averred that tallying was conducted in the absence of the NASA agents and that he was
coerced into signing the Form 34A in order to get a copy. These averments are not supported by any
evidence.
242. Further the deponent states that in Mbeere South Tallying Centre at Nyangwa Secondary School the
Chief Agent, one Mr Donald Muchembi registered several complaints that included harassment by
Jubilee and Provincial Administration Ocers. It is also averred that the County Commissioner was
acting as the Jubilee Chief Agent. It is unfortunate, that the deponent did not in any way attempt to
support these claims with any form of evidence. The statement that Mr Muchembi was harassed is
hearsay and therefore inadmissible in its entirety.
243. It was further asserted that at Mbeere South Tallying Centre the Returning Ocer informed the
persons present in the hall that she would wait for the County Commissioner to return before
concluding the tallying process. It was also averred that in Gichera Primary, Runyenjes Central,
Ngurweri: the indelible ink was not used and voters confessed to have voted more than once; the agents
were sitted too far from where identication of voters was taking place hence they could not ascertain
whether identication had happened; the presiding ocers and the Polling Clerks were assisting those
who were unable to vote; the Presiding Ocers were counting rejected ballots in favour of the 3rd
Respondent without any explanation; there were reports that NASA agents were compromised by the
County Commissioner and the Head of Police; and, the conduct of the IEBC ocials and the County
Commissioner were repeated in all areas in Embu County. These statements are unsupported by any
evidence and remain as bare allegations.
244. Other averments in this adavit were with regard to the following:
a. Late commencement of the voting process at Karago Primary School in Kieni North
Constituency.
b. The use of the manual identication of voters and abandonment of the electronic system of
identication without justication, at Kathungu Primary School in Kagaari South.
c. The assertion that one of the NASA agents witnessed voters issued with two presidential ballot
papers in the same polling station.
245. No evidence was adduced in support of these allegations. The allegation that some voters were issued
with two presidential ballot papers is unsupported by any evidence. It would be expected that the
deponent would have adduced more credible evidence in support of that claim. The mere statement
of an account supposedly witnessed by some other persons in this case some NASA agents – is hearsay
evidence which is inadmissible.
246. The adavit of Moses Wamuru in support of the petition makes bare averments which have not been
supported by cogent evidence.
7.The Adavit of Godfrey Osotsi in support of the Petition

247. Mr. Godfrey Osotsi deposed that he is the Secretary Generay of the Amani National Congress Party
and was accredited as the Chief agent nominated by the ANC Party aliated to the NASA coalition.
In respect of the time of streaming of the results, he averred at 1715hrs the presidential results had
started streaming in. He explained that upon enquiry with one ocial of the 1st respondent by the
name Waqo Shuke, he was informed that there were two sets of results; those with Forms 34A and those
without Forms 34A which were based on the text messages only. He asserts that the 1st respondent
had all along represented to them that all text results would be accompanied by scanned Forms 34A
simultaneously. In evidence he annexed a transcript of video clips of the ocers of the 1st respondents
making statements on that issue.
248. It was his assertion that upon consultation the 1st respondent‘s Information Technology consultants
from Saron (which supplied the KIEMS gadgets) they conrmed that they were receiving results
without Forms 34A for the reason that some areas lacked 3G and 4G network and could not, therefore,
transmit the images. It is to be noted that this assertion is a bare allegation without supporting
documents for the same rendering the statement as hearsay.
249. He admits that the 1st respondent availed 29,000 Forms 34A on the deponent‘s external drives. He
however, emphasized that they did not get over 11,000 forms. He added that by the time the results
were being announced, there were 10,480 Forms 34A outstanding and that upon request to get the
outstanding forms Mr. Waqo an ocial of the 1st respondent sent him an email with the results from
10056 Polling Stations. He avers that out of those Polling Stations 100 of them had more than 700
registered voters. He annexes a copy of the said email and what is stated to be the accompanying data
le containing the text only results.
250. It should be noted here that the said accompanying document contains data on the number of Polling
Stations that were out indicated to be outside network coverage. Indeed, that document bears the title
Analysis of network coverage in relation to IEBC Public Notice. That document is of no probative
in respect of the claim that there were text-only results of 10,056 Polling stations or in respect of the
allegation that there were polling stations with more than 700 registered voters.
251. Annexed to the same adavit is another document that is lacking in clarity. It bears some data
categorized in three columns indicating the county name and the number of Polling Stations. However,
since its contents are vague and it is not possible to decipher the details contained in the document.
It is therefore of no evidentiary value. Even if the contents of the document were clear it would only
serve as evidence of the number of Polling Stations in specic Counties that is assuming that
8. The Adavit of Olga Karani

252. Olga Karani deposed that she was one of the duly accredited agents nominated by the National Super
Alliance (NASA) for the August 8, 2017 general elections as the Deputy Chief Agent. She asserted
that there were irregularities and anomalies in the tallying process at the tallying center which were
expressed by the members of public, NASA agents and candidates in several media platforms; details
of which were set out in the adavit of Dr. Nyangasi Oduwo.
253. She averred that the prescribed forms which were manually transmitted to the National Tallying Center
or otherwise deposited in the IEBC website were impossible to verify as the same forms lled in by the
presiding ocers and the Returning Ocers in the presence of the agents as prescribed by law. She
asserted that she made a request for the 1st respondent to clarify why the forms were not processed
in accordance with KIEMs procedure provided but it declined to disclose the source of the forms or
make clarications on the same. It was her assertion that by the time the results were announced by the
Chairperson of the 1st Respondent, the Commission had neither collated or availed any Forms 34B
and had not addressed any issues relating to the Forms 34A or the results published in its website which
evidenced a lack of transparency on the part of the 1st Respondent. The adavit has no documentary
evidence annexed which are relevant in support of the averments made.
9. Dr. Nyangasi Oduwo‘s Adavits

254. Dr. Oduwo deposed that he is a medical doctor with a Post-Graduate Diploma in Research Methods, a
Masters in Project Management and Planning, a Second Masters in Economic Policy and Analysis and
is the economic advisor to the current Governor of Mombasa County Government. He asserted that
on 8th August, 2017 at around 5.07 pm, barely 10 minutes after the closure of the polling stations, the
Commission started streaming in results of the presidential vote in the media. He averred that from
the very start of the results broadcast to the end, a constant percentage dierence of about 11% was
maintained between the 1st petitioner and the 3rd respondent despite the fact that the results were
coming in a random manner.
255. He averred that the Chairperson of the Commission addressed the media and indicated that the 1st
Respondent was yet to receive all the statutory Forms 34As in respect of the Presidential results it was
streaming through the 1st Respondent‘s online web Portal and that the said results were provisional.
256. In line with the grounds in the petition he reiterated that in many polling stations within Kenya and
the Rift Valley region, agents of the petitioner were chased away from the stations and replaced by
imposters who were caused to create ctitious names and sign blank Form 34As. It was his averment
that the Presiding Ocers were caused to ll in such ctitious results as they desired in favour of
the 3rd respondent, and that they were lled by one person on the particulars of all 7 agents. In
evidence he annexed a copy of a blank Form 34 A for Ruai Girls Secondary School polling in Kasarani
Constituency.
257. I have found that that blank Form 34A has no probative value in respect of the assertions made in
the Petition (in fact I have checked this allegation alongside the certied copy of the particular polling
station and found it not to be correct), and those deposed to in the adavit of Dr. Nyangasi. He makes
a further assertion that upon analyzing the turn out in the presidential results vis-a-vis the gubernatorial
results and the Parliamentary results vis-a-vis the registered voters and the votes cast he discovered that
the total votes cast for the President are 15,588,038 while those cast for the Governors are 15,098,646
demonstrating that of 482,202 voted for the President and not for the Governor. Further, the same
examination discloses that 15,008,818 people voted for MPs only demonstrating that 567,517 voted
only for the President and not MPs. He posits that the foregoing disclosure is a factual and legal
impossibility and shows that the presidential votes were inated by these number of votes. He attached
his analysis in support of that claim.
258. It is also averred that Forms 34A submitted by the petitioner‘s agent in respect of Igembe South,
URA Tea Buying Centre Polling Station number 2 of 2, Amwamba Primary School Polling Station in
Igembe South, Meru County, Tonye Primary Polling Station, North Kamagambo and Memba Primary
School Polling Station Number 1, West Asembo Ward indicated results that diered from those in the
respective Forms 34B.
10. Adavit of George Kegoro in support of the Petition

259. Mr. George Kegoro the Executive Director of Kenya Human Rights Commission deposed that
Kura Yangu Sauti Yangu which is a coalition of like-minded civil society organisations deployed 500
monitors in all the constituencies to monitor and observe the elections. He averred that Kura Yangu
Sauti Yangu revealed contradictions and anomalies in the nal presidential results announced by the
2nd respondent and those displayed on the 1st respondent‘s website portal. He asserts that in Kisumu
the verbal announcement was 60,000 votes less than what is in the portal. To the adavit a report of
Kura Yangu Sauti Yangu is annexed in evidence. That report comprises of an analysis that juxtaposes
the number of valid votes in Nyanza on 11th August, 2017 against those in the portal on 18th August,
2017 and it indicates the variance as 63,368 votes less.
260. It is worthy of note that the report was prepared by Kura Yangu Sauti Yangu which is a project of Kenya
Human Rights Commission where the deponent is the Executive Director. Therefore, its veracity
without additional corroboration from an independent third party is questionable.
11. The adavit of Apprielle Oichoe

261. Apprielle Oichoe deposes that she is a cyber-security expert. She avers that she is a PhD candidate on
cyber security and is a consultant on cyber-security matters.
262. She avers that the 1st respondent‘s systems and database ought to have been tested on the following
components and principles:
(i) Condentiality – the information should only be accessed by authorized persons only.
(ii) Integrity – the information used should be accurate and complete and protected from
malicious modication.
(iii) Availability – the information and systems required must be available as and when require,
(iv) Non-repudiation – the audit trail must be maintained; and,
(v) Authenticity – the information and the source must be proven to be genuine.
(vi) Privacy – where the deponent avers that, on the basis of advice by her advocates on record
Section 55A of the Elections Act read with section 44 B (5) contemplates privacy and security
of data.
263. It was her testimony that if it is proven as alleged in the petition that the 1st respondent failed to secure
its data and public maintained portal there would be need and justication for an audit of all its systems.
12. The adavit of Koitamet Ole Kina

264. Mr. Ole Kina who averred that he was a duly accredited agent nominated by the National Super
Alliance (NASA) for the 8th of August 2017 general elections swore that he arrived at Bomas of Kenya
August 8, 2017 at 1630hrs to activate his access card which took him about one hour. He asserts that he
converged with fellow agents and at about 5.15pm the results started streaming in at the IEBC portal.
265. It was his testimony that his team realized that there was no way to verify the results as they were
not accompanied by the hard copies of Forms 34A or the soft copies that IEBC was receiving from
their server. They approached Commissioners Professor Guliye, Roselyn Akombe and the CEO Ezra
Chiloba and requested them to avail the Forms 34B for purposes of verication of the results.
266. He avers that they waited for the response which was not forthcoming. As a result they requested for a
meeting with the Commission. At the meeting, they raised their issues regarding the results. He averred
that Professor Guliye asked Saron consultants to access the document which they stated they could
not. He asserted that Prof. Guliye explained that while the data had arrived, it was unaccompanied by
the required image. Therefore, the deponent asserted, they had to wait to upload as soon as the KIEMS
kit was taken to a physical location with either 3G or 4G. He averred that the consultant stated that
there was a possibility that the data would not come at all.
267. He asserted that they pressed on for a solution to the problem, and agreed that an access point in form
of an email would be created. Further, he added that the link provided was not working and the IT
team took the whole night trying to access it but was only able to access one Form 34A on the morning
of 9th of August 2017 but eventually, the credentials granting them access was revoked.
268. It was his testimony that on the 9th of August 2017, they approached the issue of verication and
challenges in accessing forms again with the Chief Executive Ocer of the 1st Respondent and were
promised that they would be able to have access to 11,000 Forms 34A by the Commissions Director
of ICT Mr. Muhati. They were asked to provide a two-terabyte external hard disk for the copies to be
availed which they did but they only received 6,000 of the anticipated 11,000 soft copies.
269. He asserted further, that on the 10th of August 2017, the Commission continued to transmit
unveriable results implying that the same was veried. He indicated that this was pointed out to them,
and they arranged for a meeting the next morning. It was his testimony that by the end of that day, the
Commission was only able to supply 23,000 Forms 34A and about 50 Forms 34B.
270. In respect of the same, he averred, that his team ocially wrote to the Commission highlighting their
issues but no response was received. Further, he asserts that they agreed to an informal meeting, in
which the NASA deputy Chief Agent Ms. Ogla Karani outlined discrepancies and inconsistencies in
the results that were live streaming as well as those in the Forms received, and it was agreed that the
Commission would respond immediately. It was further agreed that only those results with veriable
Forms 34A and 34B would be declared.
271. It was his testimony that on the 11th of August 2017, when all indications were that the Commission
was ready to declare the results, he approached the Commission on request for the remaining 34As
and was told that as at that moment there were only 29,000 available forms putting those pending at
over 11,000. They were assured that the declaration could not be made without the remaining forms.
272. He swore that the Petitioners and the Chief Agent approached the Commission on the same issues
and were reassured that results would not be transmitted until they were veried; that the commission
would follow the law.
273. He deposed that his team was approached by Commissioner Lucy Ndung‘u the Registrar of Political
Parties to sign the Forms 34As, implying that despite assertion by the Chairman that he would not
announce unveriable results there was a possibility that he would do so. It was his assertion that the
Registrar could not deny or conrm this. It was also averred that the Commission was not able to
supply the remaining Form 34As and that although the chairman had at that time claimed that 288
Forms 34B had arrived, there were only 108 available at the tallying center.
274. It was his testimony that at 8:00 p.m. the Commission summoned them to a meeting where they were
informed that they had received all the requisite Forms 34B and veried them and that the chairman
was going to make a declaration. He deposed that the NASA team was asked if they were ready to sign
the results which it declined to do on the basis that their request to be supplied with the forms had
gone unheeded.
275. It was asserted further that on the 14th of August 2017 Ms. Ogla Karani formally wrote to the
Commission requesting for the remaining forms and the 1st respondent replied indicating that the
Forms 34B were available immediately but the Forms 34A were not available but would be availed as
soon as it was possible to do so.
276. He averred that on 15th of August at around 1630hrs he received a phone call from a Mr Abednego
Ominde, Ezra Chiloba‘s personal assistant requesting him to go and collect 5,150 scanned copies
of Form 34A that were now available. In addition he stated that Ezra Chiloba did so in response
to pressure from the public and the Petitioners on the non-availability of Forms 34A therefore
questioning the authenticity of the results; especially seeing that the results were announced without
10,000 Forms 34A and 187 Forms 34B. He stated that there was still a balance of more 5,000 forms
to be supplied by the Commission. Mr. Ole Kina also attached Mr. Chiloba‘s letter dated August 15,
2017, addressed to Ms. Ogla Karani and reads as follows:
-Reference is made to your letter dated 10th August, 2017 and 14th August, 2017……On
11th August 2017, the Commission supplied you with 29,000 Form 34As and 103 Form
34Bs as stated in your letter dated 14th August, 2017. On 14th August, 2017, you were
supplied with the balance of 187 Form 34Bs which were collected by one Mr. Ole Kina.
The CEO advised Mr. Ole Kina to visit our oces today, Tuesday 15th August, 2017
to collect additional Forms. Enclosed herein are 5,015 Form 34As part of those that had
not been scanned. Please note that all the 40,883 Form 34As shall be made available at
www.forms.iebc.or.ke So far, up to 35,314 Forms 34As can be found on the public portal….
277. Mr. Ole Kina averred that the chronology of the events pointed to the fact that the determination on
the part of the 1st respondent to declare results that could not be veried as required by law. It was
his evidence that 1st respondent is on record conrming the nonavailability of a substantial number
of Forms 34A and 34B hence calling into question the authenticity of the results that were declared
on the 11th of August 2017.
278. In conclusion he averred that the massive irregularities, discrepancies and anomalies contained in the
Adavit of Dr. Nyagasi Oduwo show that the 1st respondent‘s decisions were misinformed and are
based on information incapable of verication as to their accuracy, transparency and credibility.
279. The letters annexed in evidence indicate that there was a delay in availing copies of the prescribed forms
to the petitioners. However, it is evident from the letter by the 1st respondent to Ms. Olga Karani dated
15th August, 2017 that 29,000 Forms 34A had already been availed to the petitioners on 11th August,
2017 together with 103 Forms 34B. On 15th August, 2017, additional Forms 34A which were 5,015
in number were supplied enclosed with the said letter. It is also clear that the petitioners were informed
that 35,314 Forms 34A were already available on the public portal and that all the 40,833 Forms 34A
would be available on the said portal.
280. Mr. Ezra Chiloba in his adavit controverts the allegation that the said forms were not supplied to the
petitioners. He avers that the forms were supplied and attaches the said letters in evidence.
281. The allegation made by the petitioners is that since the Forms were not availed to them promptly then
the 1st and 2nd respondents‘ decisions were misinformed and were based on information that was
incapable of verication. This is intended to advance the claim of the petitioners that the election did
not comply with Article 81 and 86 of the Constitution.
282. I am conscious of the need by major stakeholders, in a process such as the one forming the subject
matter of the present petition (the Presidential election), to gain access to all the relevant documents
containing all the material facts relating to the process. Therefore the need for the petitioners to get
all the relevant forms from the 1st respondent was completely justiable. However, I am alive to the
fact that the 1st respondents have been tasked with an immense constitutional mandate to conduct six
elections on the same day which run concurrently. Though that is humanly possible it is a daunting
task to count, tally and verify the results of all the six elections and more specically the Presidential
election within the Constitutional timeline of seven (7) days from the date of the election.
283. One cannot lose sight of the fact that the 1st respondent‘s ocials had been working round the clock
during the election period, therefore the reduced eciency that ordinarily comes with long working
hours and lethargy are inevitable irrespective of a person‘s will power to eciently accomplish such
a sacrosanct process that normally comes once in every ve years. In my opinion the performance
by the 1st respondent and availing all the Forms 34B to the public and to the petitioners within 4
days of the declaration is commendable in view of the fact that the KIEMS system was being used by
the 1st respondent for the rst time. The delay by the 1st respondent of about four days to supply
the petitioners with the Forms 34A cannot be construed to be completely unwarranted under the
circumstances.
284. It is imperative to state that after the Commission has declared the election results it becomes functus
officio and it has nothing more to do with the concluded election. It was so held by this Court in Joho
that [paragraph 65]:
-The jurisdiction to handle disputes relating to the electoral process shifts from the
Commission to the Judiciary upon the execution of the required mandate by the returning
ocer. Once the returning ocer makes a decision regarding the validity of a ballot or a vote,
this decision becomes nal, and only challengeable in an election petition. The mandate
of the returning o icer, according to Regulation 83(3), terminates upon the return of
names of the persons-elected to the Commission. The issuance of the certicate in Form
38 to the persons-elected indicates the termination of the returning ocer‘s mandate, thus
shifting any issue as to validity, to the election Court. Based on the principle of eciency
and expediency, therefore, the time within which a party can challenge the outcome of the
election starts to run upon this nal discharge of duty by the returning ocer.
285. This was reinforced by the Court in George Mike Wanjohi in which this Court held that once a
declaration of results is made by the returning ocer the Commission becomes functus ocio and any
alteration of the declared result has to be by an Order of the Court. The Court held that [paragraph
111]:
-The Returning Ocer having declared the 1st respondent as the winning candidate, and
duly issued the Form 38, became functus ocio. There is neither scope for the Returning
Ocer to withdraw a declaration of the election result once made, and to cancel the
certicate issued in favour of the winning candidate, nor is there a mandate to rectify the
Form 38. Once the votes are polled, counted and results declared, it would be perilous to
allow the Returning Ocer to nullify the result, purportedly in rectication of some error.
This would not only aect the very sanctity of the election process, but also encroach on
the powers of theElection Court.
286. Having said that, it is necessary to state that going forward, if after the Presidential election results
have been declared, a person is desirous of accessing the prescribed declaration forms relating to the
Presidential election which the law does not expressly stipulate are to be availed to a party, such a party
should seek access to such forms through the Court.
13. The Replying Adavit of Immaculate Kassait

287. Ms. Immaculate Kassait deposed that she is the Director Voter Registration and Electoral Operations
of the 1st Respondent. She averred that her duties included the management of electoral processes,
voter registration processes (voter registration strategies and inspection of voters‘ register), electoral
operations among others.
288. In response to Dr. Nyangasi‘s supporting adavit she deposed that in most polling stations voting
commenced at 6.00am and ended at 5.00pm after which the counting of votes began. Further, she
averred that there were a number of polling stations in which voting process was delayed for some
reasons and cited Turkana County as one of the Counties aected by oods and the voting materials
had to be airlifted which in turn delayed the voting process.
289. She asserted that it was erroneous to state that Forms 34A from the polling station were the nal results.
She deposed that the Court of Appeal in the Maina Kiai case ruled that the electronically transmitted
image of Form 34B is the nal result for the Presidential Election with respect to each Constituency.
290. In response to the aspersions cast on the practicality of streaming results shortly after close of polling
stations she averred that it was possible to count and tally votes in polling stations which had between
1-10 registered voters. She pin-pointed polling stations such as Boyani Primary School in Matuga
Constituency, Arabrow in Wajir South Constituency, Ya algana in North Horr Constituency which
all had 3 registered voters, and Lowangina Primary School, in Tigania East Constituency which had
one registered voter.
291. In respect of the constant 11% dierence as alleged in the adavits in support of the petition the
deponent denied the same. She displayed a table in her adavit based on thirty-minute interval analysis
of the data which showed that the percentage ranged from 9.095 to 25.573.
292. She averred that the 2nd Respondent claried that the statistics not backed by Forms 34A or 34B,
including the statistics that were being projected on the National Tallying Centre‘s Television screens
were not the nal result.
293. She deposed that the 1st respondent did not chase away the agents of the petitioner in central Kenya
and Rift Valley asserting that there was no evidence to substantiate that claim. Further, she averred that
contrary to the claims in Dr. Nyangasi‘s adavit, Ruai Girls Secondary School was a polling centre
in Kasarani Constituency of Nairobi County with 13 polling stations and not a polling station. In
addition, she deposed that in the said polling centre, the petitioners‘ agents duly executed Forms 34A
in all polling stations.
294. She averred that the tallied votes for the 1st petitioner that were transmitted from the KIEMS kit in
terms of text and image of the Form 34A URA Tea buying polling station 2 of 2 was 56 votes and not
66 votes as alleged in the supporting adavit.
295. She denied Dr. Nyangasi‘s assertion that in Amwamba Primary School Polling Station in Igembe
South, Meru County, the total tally for Odinga Raila was 323, while Form 34B in respect of the
same polling station indicated 325 votes. She averred that Amwamba Primary School had two polling
stations; in polling station 01, the 1st petitioner had an agent. She deposed that the total tally for the 1st
petitioner in polling station number 1 was 51 votes. Further, she asserted that neither the 1st petitioner
nor the 3rd respondent had agents in polling station 02. She added that the 1st petitioner‘s tally in
polling station 02 was 32 votes. In support of those assertions is a copy of the Form 34B annexed as
evidence.
296. She admitted there was a data entry error leading to the 1st Petitioner who garnered 561 votes being
shown as having received only 2 votes. She cited in support of these assertions the adavit of John Ole
Taiswa which set out the particulars of the circumstances under which the error occurred. It was also
admitted that there was a data entry error leading to the 1st petitioner who garnered 437 votes being
shown as having received only 4 votes. She deposed that the full circumstances as to how those errors
occurred were set out in the adavit of Rebecca Abwaku.
297. She denied the allegation that a partial form 34B was uploaded in respect of Karachuonyo
Constituency. Instead, she asserted that the whole Form 34B was uploaded and was available online
and she annexed a copy of the said Form 34B.
298. She denied the allegation that in Kilome Constituency, Makueni County, the original IEBC Form 34B
reected 38,269 votes while that uploaded in Commission‘s portal showed 33,757 thereby creating a
variance of 4,512 votes. It was here assertion that the Form 34B as uploaded onto the online portal and
the original Form 34B indicated a gure of 38,285 as valid votes cast. Further, she deposed that the
reference to 33,757 votes in the said Form referred to the votes cast for the 1st petitioner.
299. The deponent refuted the allegations that in Igembe South, Meru County, the total number of votes
in Forms 34As for the 1st petitioner was 41,834 yet according to Form 34B in the Commission‘s portal
his total votes were 43, 209. She deposed that the accurate gure which was reected in the uploaded
Form 34B was 50,931 votes as opposed to the gures alleged.
300. She admitted that there was a clerical error in Form 34A submitted by the Petitioner‘s agent in respect
of Mungoye Pimary School Polling Station Number 1, West Bunyore, Emuhaya Constituency, Vihiga
County where a variation of -10 votes against the entry made on Form 34B.
301. She denied the allegation that the Form 34A in respect of St. John‘s Primary School Polling Station,
Makongeni Ward, Makadara Constituency, Nairobi County, indicated the total number of valid votes
casts as 468 against the entry on Form 34B which was stated to be 467.
302. Likewise, she denied the allegation that there was a variance in the Form 34B keyed in the KIEMS
kit and that projected at the National Tallying Centre in of Morrison Primary School Polling Station
Number 6 of 9 as alleged. She admitted that there was a clerical error which created a discrepancy in
Form 34A of 6 votes.
303. It was admitted that there was a discrepancy in Forms 34A and 34B in respect of Rabai Road Primary
School Polling Station Number 1 of 4, Harambee Ward, Makadara Constituency, Nairobi County
due to a transcription error. She deposed that this had no material eect on the results, adding that the
circumstances were explained in the adavit of Moses Nyongesa Simiyu.
304. The deponent admitted that the Form 34A submitted by the Petitioner‘s agent in respect of Kaloleni
Primary School Polling Station Number 8 of 10, Makongeni Ward, Makadara Constituency, Nairobi
County, which indicated that the total number of rejected votes to be 4 while Form 34B in the portal
did not indicate any rejected votes, had a transposition error.
305. The deponent averred that there were no discrepancies between Form 34B for Embakasi South
Constituency and Form 34A for Jobenpha Community School Polling Station Number 17 of 21,
Kware Ward, polling station.
306. She admitted that there was a discrepancy between Form 34 A and Form 34B regarding the votes for the
3rd respondent in respect of Kewi – South C Polling Station Number 3 of 8, South C Ward, Langata
Constituency, Nairobi County. However, she denied that there was a discrepancy between Form 34A
and Form 34B in respect of both Nyandiwa Primary School Polling Station Number 2 of 2, Bogetenya
Ward, South Mugirango Constituency, Kisii County and Omgogwa Primary School Polling Station
Number 1 of 1, Bosetenya Ward, South Mugirango, Constituency, Kisii County.
307. It was admitted that there was an arithmetic error in Form 34A and Form 34B in respect of Manywand
A‘ Primary School Polling Station Number 2 of 2, Boikanya Ward, South Mugirango Constituency,
Kisii County. However, she deposed that the aggregate votes cast for each candidate in Form 34A
showed that there were 300 valid votes cast which was reected in Form 34B. She annexed as evidence
the relevant Forms 34A and Form 34B.
308. It was denied that there were any discrepancies in Forms 34B and 34A in respect of Kiru Primary School
Polling Station Number 1 of 2, Bokimonye Ward, Bomachoge, Borabu Kisii County. She asserted that
Form 34B and the result keyed in the KEIMS kit and projected at the National Tallying Centre tally all
matched showing 338 total votes. She however admitted that there was a computation error in Form
34A.
309. The deponent denied that there was a variance in Form 34B that indicated 4 rejected votes and Form
34A that did not indicate any rejected votes in respect of Nyanturago Tea Buying Centre Polling
Station Number 2 of 2, Beno Ward, Nyaribare Chache, Kisii County. She however admitted that there
was a clerical error in that Form 34A indicated 4 rejected votes, while Form 34B indicated 5 rejected
votes.
310. It was denied that in Kiogoro Tea Buying Centre Polling Station Number 2 of 3, Kiogoro Ward,
Nyaribari Chache-Kisii County, the Form 34As had a total of 516 votes compared to Form 34B which
indicated 561 votes, thereby having an increased variation of 45 votes. She however indicated that
Form 34A of this polling station indicated no rejected votes, while Form 34B indicated 2 rejected votes
revealing a variance of 1 rejected vote.
311. She admitted that the Form 34A submitted by the Petitioner‘s agent in respect of Keoke Primary
School Polling Station Number 1 of 2, Bironyo Ward, Nyaribari Chache, Kisii County, indicated 4
rejected votes while the IEBC Form 34B did not indicate any rejected votes which according to her was
a transposition error.
312. In respect of the allegation that the Form 34A submitted by the petitioners‘ agent in Irondi Primary
School Polling Station Number 1 of 1, Birongo Ward, Nyaribari Chache, Kisii County, indicated 3
rejected votes while Form 34B of the IEBC had no rejected votes and the allegation that there was a
discrepancy as the total number of votes in Form 34A was 410 and Form 34B recorded 413, she averred
that the valid votes cast in respect to the candidates when tabulated was 410. She deposed that the
minor variance between the Form 34A and Form 34B was occasioned by a clerical error.
313. The deponent admitted that the Form 34A submitted by the petitioners‘ agent on Amabiria Primary
Polling Station Number 1 of 1, Keumbu Ward, Nyaribari Chache Constituency, Kisii County
indicated the total votes at 273 against 377 votes in Form 34B in the uploaded Commission‘s portal.
She also admitted that the 3rd respondent‘s votes recorded in Form 34A were 138 while those recorded
in Form 34B were 238, thus creating 100 extra votes in his favour. She deposed that the circumstances
leading to the variance were set out in the adavit of Julius Meja Okeyo.
314. It was admitted that the Form 34A submitted by the petitioners‘ agent in respect of Sosera Primary
School Polling Station Number 1 of 2, Nyamasibi Ward, Nyaribari Masaba Constituency, Kisii
County, recorded 386 total votes while those in the IEBC‘s Form 34B were 383. She deposed that it
was a transposition error.
315. In response to the allegation that there was a discrepancy in the recorded votes in the Form 34A
submitted by the petitioner‘s agent which recorded 273 votes in respect of Ibacho Tea Buying Centre
Polling Station Number 2 of 2, in Kiamokama Ward, Nyaribari Masaba Constituency, Kisii County,
while the Form 34B indicated 272 votes, it was deposed that the correct number was 272 votes and
273 votes was an erroneous record.
316. She denied that there were any discrepancies in Form 34B, which was alleged to record 340 votes, and
Form 34A, which was alleged to indicate 343 votes, in respect of Ekemuga Primary School Polling
Station Number 1 of 1, Ichuni Ward, Nyaribari Masaba Constituency, Kisii County. She asserted that
the valid votes cast were 340 and the 3 extra votes were rejected votes.
317. The allegation that the Form 34B, recorded 260 votes, and Form 34A, indicated 261 votes, in respect
of Kiamokama Township Primary School Polling Station Number 1 of 2, Gesusu Ward, Nyaribari
Masaba, Kisii County, was denied. She swore that the total number of votes recorded and transmitted
were 260. The deponent admitted that there was a variance in the Forms 34A and 34B as alleged with
regards to Kiomiti Primary School Polling Station Number 2 of 2, Gesusu Ward, Nyaribari Masaba
Constituency, Kisii County. She deposed that while it was alleged that Form 34A recorded 356 votes,
the correct number of votes was 354 and the variance occurred due to a transposition error.
318. The deponent admitted that there was a variance in the Forms 34A and 34B as alleged with
regards to Kiomiti Primary School Polling Station Number 2 of 2, Gesusu Ward, Nyaribari Masaba
Constituency, Kisii County. She deposed that while it was alleged that Form 34A recorded 356 votes,
the correct number of votes was 354 and the variance occurred due to a transposition error.
319. The deponent averred that in respect of Riasongoro Tea Buying Centre Polling Station Number 1 of
1, Kiamokama Ward, Nyaribari Masaba Constituency, Kisii County there were only data entry errors.
She asserted that Kaluyu Japheth Kavinga was recorded as having 1 vote in Form 34B while Form 34A
indicated that he received 2 votes.
320. She denied the allegation that the Form 34B was missing in respect to Getare Tea Buying Centre Polling
Station Number 1o 2, Ichuni Ward, Nyari Bari Masaba, Kisii County. It was her assertion that both
Forms 34A and 34B indicated a similar record of votes.
321. Ms. Kassait also denied the allegations that there was a variance in Forms 34A and 34B in respect of
Suguta Primary School Polling Station Number 1 of 1, Baasi Central Ward, Bobas Constituency. She
swore that contrary to the allegations in the supporting adavit of Dr. Nyangusi, the recorded votes
in both forms were 508.
322. Similarly, she disputed the assertion that there was a discrepancy in the recorded votes in both Forms
34A and 34B in Bokinibanto Primary School Polling Station Number 1 of 1, Masige East Ward, Boasi
Constituency, Kisii County. She deposed that both forms indicated 483 votes.
323. She refuted the allegation that there was a variance in Forms 34A and 34B in respect of Rusinga Primary
Polling Station Number 1 of 2, Bobasi Constituency adding that the alleged votes received were false.
324. It was admitted that the Form 34A submitted by the petitioner‘s agent with respect to Nyabieyo
Primary School Polling Station Number 1 of 1, Bomariba Ward, Bonchari Constituency, Kisii County,
recorded the 1st petitioner as having 228 votes as compared to Form 34B where he was recorded to have
0 votes. She referred to the adavit of David Kipkemoi Cherop to provide the relevant explanations.
325. The deponent admitted to a clerical error in Forms 34A and 34B in respect to Nyamiobo S.D.A.
Primary School Polling Station Number 1 of 1 Majoye Ward, Bomache Chache Constituency, Kisii
County. She swore that that the correct number of votes cast was 405 as opposed to the 407 that was
recorded in error.
326. It was admitted that there were arithmetic errors in Musunji primary School Polling Station Number
2 of 2, Shiru Ward, Hamisi Constituency, Vihiga County in the statutory Forms in respect of the 1st
petitioner‘s votes. Form 34A indicated that he had 357 and 34B indicated 356 votes. She similarly
admitted to such error in Nyalendaa Community Hall Policing Station Number 5 of 6, Kisumu
County where she deposed that the 3rd respondent was denied 12 votes. Similarly, she admitted to a
variance of 1 vote in Wandiege Primary School polling stations where Form 34A indicated 503 against
Form 34B‘ 504.
327. She refuted that there was any variance in the total number of votes recorded in the statutory forms
in respect of both Angira Primary School Polling Station Number 2 of 2, Kajuu Ward, Kisumu East
Constituency, Kisumu County and Nyanchenge Primary polling station number 1 of 2 in Bobasi
Constituency in Kisii County.
328. She admitted to minor variances the Statutory Forms in Rusinga Primary polling station number
1of 2 within Bobasi Constituency in Kisii County due to a mathematical error and in respect of
Amabiria Polling Primary number 1 of 1, Nyaribari Chache Constituency Kisii where the votes for
3rd respondent were increased by 100 votes. She deposed that the variance was explained in Julius Meja
Okeyo‘s adavit.
329. She refuted that the petitioners‘ votes in Nyabieyo Primary Polling Station 1 of 1 Nyaribari Chache
Constituency Kisii were deducted by 228 votes.
330. Dr. Nyangasi‘s allegation that there was any variance in the number of votes recorded in the statutory
forms in respect of: Maturu Primary Polling station 2 of 2 in Lugari Constituency Kakamega;
Cheptoroi Polling station 2 of 3 in Njoro Constituency Nakuru and Kapkures Health Polling Station
number 7 of 7 Nakuru county, was denied.
331. The deponent admitted that there was data entry error in Form 34A in respect of Kiptembwo Primary
Polling number 4 of 8, Nakuru Town West Constituency where the votes for petitioner were deducted
by 229, while 288 votes were added to the 3rd respondent. She averred that the circumstances leading
to the variance were explained in the adavit of Gilbert Serem.
332. The deponent denied that the 3rd respondent‘s votes in Ilomotioo Primary Polling Station number
1 of 1 in Kajiado Central Constituency were increased by 10 votes. She conrmed that the 3rd
respondent garnered 234 votes from the said station as reected in both Form 34A and 34B and not
224 votes as alleged Dr Nyangasi.
333. She refuted Dr. Nyangasi‘s allegations that there was any variance in the number of votes recorded in
the statutory forms in respect of: URA Tea Polling Station number 2 of 2 Igembe South Constituency;
Kiyanka Primary polling station number 2 of 2 Igembe South Constituency in Meru County; Kiegoi
Primary polling station 2 of 2 in Igembe South Constituency and Nkiriana polling station number 1
of 2 in Igembe South Constituency in Meru.
334. The deponent admitted that there was a clerical error in Dandora III City Council Hall polling station
number 9 of 9 in Embakasi North Constituency Nairobi where 2 votes were deducted from the
petitioner‘s tally from 214 votes to 212.
335. The deponent admitted that there was a clerical error of wrong entry in Migori Main Prison polling
station 1 of 1, Suna Central Ward, Suna East Constituency where the 1st petitioner‘s 12 votes were
wrongly entered as votes for Nyagah Joseph.
336. Also admitted was the fact that there was a clerical error of wrong entry in Waitharaga Primary School
polling station number 1 of 1 Suna Central, Suna East Migori county where petitioners 359 votes were
wrongly entered as votes for Nyagah Joseph.
337. The deponent denied Dr. Nyangasi‘s allegation that the 1st petitioner garnered 663 votes from
Nyarongi Primary School polling station number 1 of 2 Kakrao Ward, Suna East, Migori County and
that his votes were reduced by 331 to 332 votes. She averred that registered voters in that station were
382 and thus it was impossible to for the petitioner to garner 663 which was more than the registered
voters.
338. Ms. Kassait denied Dr. Nyangasi‘s allegations that there were instances of dierent presiding ocer
signing for another or voting presided over by ungazetted presiding ocers.
339. It was denied that the 3rd respondent‘s votes from Isiolo North Constituency were inated by 5,422
votes or that there were inconsistencies between forms 34As and 34Bs. She added that there was no
evidence of such variance, noting that Form 34B was duly lled. She deposed that handover section
could not be lled because the Forms had to be sent to NTC electronically and not physically by
returning ocers. In support of her claim she attached the Form 34B.
340. The deponent denied that the 3rd respondent‘s votes from Loima Constituency Turkana County were
inated by 7,934. She refuted the allegation that the Form 34B was blank asserting that it was lled,
signed and stamped by the returning ocer and agents as required by the law.
341. She refuted the allegation that there was a polling station named Nyakwara Primary School in Funyula
Constituency which had 339 votes cast therefrom or that the candidates were only apportioned 13
votes. She was emphatic that polling station non-existent, hence no results could originate from a non-
existent polling station.
342. The deponent refuted that in Busijo Primary School in Funyula Constituency total rejected votes
exceeded the registered votes or that the hand over section of Form 34B was not lled as required by
law. It was her testimony that the handover notes were not a legal requirement. She was emphatic that
the Court of Appeal had held that the Forms 34B were to be sent electronically to the NTC. Further
she deposed that it was not conceivable that the Returning Ocer could have physically handed over
and signed the section to the 2nd respondent at the NTC.
343. The deponent denied the allegations that the 3rd respondent‘s results from Rabai Constituency, Kili
were inated by 83 votes and there was lack of handover notes. Similarly, she denied the allegations that
in Maara Constituency, Tharaka Nithi, that the Statutory Forms were signed by a stranger and not
the presiding oce and that there were no handover notes. She deposed that Obadiah Kariuki Gacoki
who signed form 34B was a duly gazetted returning ocer. However, she deposes that the statistics
projected in the online portal at the NTC were not a representation of the results.
344. The deponent denied that results posted in the online portal from Kipipiri Constituency, Nyandarua
County were dierent from those in Form 34As, or that there was ination of rejected votes from 92
to 1087, with lack of handover notes. In response she stated that the results projected in the online
portal was not representation of the results.
345. The deponent denied the allegations that there were inated votes in Ndaragwa Constituency,
Nyandarua County by 153 in the online portal, ination of rejected votes in the portal from 477 in
Form 34B to 1,031 or that results for the 2nd respondent in Form 34B were 45,197. She deposed that
2nd respondent was not a candidate so results could not be allocated to him in form 34B, but that in
any event the gure in the Form 34B was 44,595 votes not as alleged.
346. The deponent admitted that the rejected votes in respect to Ol-jorok Constituency, Nyandarua
County were 121 and that the 1st petitioner garnered 515 votes. However, she denied that there were
discrepancies of the rejected votes as reected in the portal at 1, 233 and that announced at 121. She
further denied that the 1st Petitioner was denied 2 votes as alleged.
347. She refuted the allegations in Doctor Nyangasi‘s Supporting Adavit that there was variance in respect
to total rejected votes in Tarbaj Constituency, Wajir County where the portal indicated total of 475
rejected votes whilst Form 34B indicate a mere 31 rejected vote. It was further alleged that the said Form
34B lacked evidence of hand over notes. She deposed that the total rejected votes indicated in Form
34B were 31 as was tallied from Form 34S. She deposed that handing over notes are not a requirement
in law and were not applicable to the 2017 presidential election.
348. She denied allegations in the Supporting Adavit that Form 34B in respect to Uriri Constituency,
Homabay County did not indicate the nal tally of the presidential candidate and that the results in
the Commission portal indicated 1078 rejected votes whilst the Form 34B indicated 125 rejected votes.
She averred that the correct results are the ones indicated in Form 34B at a total of 125 as the total
rejected votes.
349. The deponent rejected the allegations that there were discrepancies in rejected votes as indicated in the
portal as 860 as against the Form 34B which indicated 114 rejected votes in respect of Baringo Central
Constituency, Baringo County. On the contrary, she averred that the correct number of total rejected
votes was 121 as reected in Form 34B and that the said gure matched the ones reected in Form 34A.
350. The deponent denied that Forms 34A and 34B in respect to Kathiani Constituency, Machakos
County; Chepalungu Constituency, Bomet County; Marakwet Constituency, Elgeyo/Marakwet;
Sigowet/Soin Constituency, Kericho County; Changamwe Constituency, Mombasa County; Wajir
North Constituency, Wajir County; Dagoretti Constituency, Nairobi County; Kericho County Yatta
Constituency, Machakos County; Mwatate Constituency, Taita Taveta County; Voi Constituency,
Taita Taveta County; Lamu East Constituency, Lamu County; Malindi Constituency, Kili County;
Yatta Consituency, Machakos County; Eldas Constituency, Wajir County, Kuresoi Constituency,
Nakuru County; Likoni Constituency, Mombasa County; Sigor Constituency, West Pokot County;
Ndhiwa Constituency Homabay County; Kieni Constituency, Nyeri County; Kajiado Central
Constituency Kajiado County; Belgut Constituency lacked handing over notes and bore no indication
of date and time for handing over of the forms contrary to law. She deposed that the handing over notes
are not a requirement in law and were not applicable in the 2017 presidential election as Form 34B was
sent electronically and not physically taken to the National Tallying Centre physically.
351. In response to unstamped Form 34B‘s such as that alleged in Changamwe Constituency, Mombasa
County, and Form 34As in Sigowet/Soin Constituency, Kericho County; Wajir North Constituency,
Wajir County; Mukarara and Waithaka polling stations in Dagoretti South Constituency; Malindi
Constituency, Kili County; Likoni Constituency, Mombasa County; Ms. Kassait deposed that while
it was procedural to stamp an unstamped form could not be a basis for disenfranchising voters.
352. The deponent denied the allegations in the Supporting Adavit that in Mwala Constituency
Machakos County that there was a variance in the total rejected votes indicated in the portal and the
Statutory Form 34B. She annexed the Form 34B marked as evidence.
353. She refuted the allegation that in Bureti Constituency, Kericho County, the summation of votes for
the 3rd Respondent in the portal were 65,284 whilst those for the 1st petitioners were 3,106 yet in the
Form 34B the 3rd respondent was indicated to have garnered 56, 259 votes and the petitioner 3,106
votes. It was her assertion that the correct results were the ones indicated in Form 34B. She attached
as evidence the Form 34B marked.
354. She denied that the 3rd respondent‘s votes were inated in: Marakwet Constituency, Elgeyo/Marakwet
by 93 and Sigowet/Soin Constituency, Kericho County by 100 votes.
355. It was denied that in Wajir North Constituency, Wajir County the 3rd Respondent‘s votes were inated
by 282 votes. She disputed the allegation that there was a variance in the rejected votes in the portal
and those Form 34B. She deposed that the correct number of the rejected votes were those found in
Form 34B.
356. She also denied the allegation that there were discrepancies in the number of rejected votes in Voi
Constituency, Taita Taveta County as recorded in the portal against the Form 34B. She deposed that
the corrected number of rejected votes was 260 as indicated in Form 34B.
357. In respect of the allegations that in Mavoko Constituency, Machakos County, Jetview polling station,
there was a variance in the number of votes recorded in the Statutory forms favouring the 3rd
Respondent to the detriment of the 1st petitioner she denied the allegation and refuted that no Form
34A was submitted in respect of Githunguri polling station.
358. The deponent denied the allegations that the stamp used in Eldas Constituency, Wajir County was
not the ocial IEBC Returning Ocer‘s stamp and that the Returning Ocer did not indicate his/
her name on the Form. She deposed that an authentic stamp was utilized and there was no basis for
invalidating Form 34 for Eldas Constituency.
359. The deponent rejected the allegation in the Supporting Adavit that in Embakasi Central
Constituency, Nairobi County there was a discrepancy in the columns of valid votes and valid votes
tally in the following polling stations: Kayole North, Imara Primary, Bondeni Primary, Thwabu
Primary and Mwangaza Primary. She deposed that the total votes with respect to Mwangaza Primary
for each candidate were captured correctly as they were indicated in Forms 34A and 34B. She also
denied the allegation that the ocial IEBC stamp was not used.
360. The deponent admitted that there was a variance in votes in Gem Constituency, Siaya County. She
averred that there was a variance between the total votes tallied and the total valid votes that led to 461
unaccounted votes. She stated that this was a data entry error. She deponed that this did not mean the
votes were deducted from the 1st Petitioner. She stated that the 1st petitioner‘s votes were correctly
reected and remain unaltered and it was the other candidates whose votes were aected.
361. She denied the allegations in the supporting adavit that in Sigor Constituency, West Pokot County,
that Form 34B was signed by unknown persons whose name was not stated. It was her evidence that
the form was signed by the gazetted Returning Ocer for Sigor Constituency.
362. The deponent refuted the allegation that in Starehe Constituency, Parkroad Primary School, there was
1 rejected vote not captured in Form 34B and that the stamp used in the Form did not match the IEBC
Returning Ocer‘s stamp. She also denied allegations that the Form was unsigned and gave no reasons
for absence of signatures. She averred that the Form 34B indicated the number of rejected votes as 24,
and that the stamp used on the form was that of the Returning Ocer issued by the 1st Respondent.
She swore that the agent duly appended his signature to the form including his name, ID number and
Contact.
363. With regards to the allegations made in Turbo Constituency, Uasin Gishu County that there were
discrepancies in the votes cast and tallied, she admitted that there was a computation error in respect
to the votes cast. She deposed however, that the valid votes for each of the Presidential candidates
was accurate. She attached as evidence the Form 34B for Turbo Constituency marked as EC.10. The
deponent further denied that unsinged and undated Forms in that Constituency were not handed over
in the prescribed manner, had discrepancies in the tally of votes, and that the handover was done by
an ungazetted person.
364. She denied the allegation that in Turkana Central Constituency, Turkana County, the Forms did not
indicate a date or time and was not handed over in the prescribed manner. She further denied that the
portal indicated 1,393 rejected votes while the petitioner‘s votes were reduced by 7 votes. She asserted
that the rejected votes were 156 and not 1,393 as alleged and tendered in as evidence the relevant Form
34B as an annexure marked-EC.11.
365. She refuted the allegation that in Kipkelion West Constituency, Kericho County, Kipkelion Primary
School polling station had discrepancies in Form 34A and 34B decreasing the Petitioners votes. It was
her evidence that Kipkelion Primary School had two polling station where Raila Odinga had 61 votes
and the same is reected in 34B while the 3rd Respondent garnered 269 votes as indicated on Form
34A properly reected in Form 34B.
366. She denied the allegation that in Kipsigei Primary School, Simotwet Pry School, Kaula Nursery School,
Kimologit Pry School, Lelechwet Primary School, Siret Pry. School, Kapkese Pry School, Kaplelit
Pry School, Murgut Pry. School, Chilchila Pry School, Bararget Cooperative, Tunnel Pry. School,
Boror Nursery School, Koisagat Pry School, Smolel Pry School, Magire Pry School, Cheborus Nursery
School, the requisite Forms were unstamped.
367. The deponent refuted allegations that in Emurua Dikir Constituency, Narok County that Forms
were not handed over in the prescribed manner and that Form 34B indicated the 3rd respondent
garnered 22,213 votes while the portal indicated 21,910 votes. She averred that the total number of
votes garnered by the 3rd Respondent was 22,313 and the same was conrmed by both Form 34A
and 34B.
368. The deponent denied the allegations that in both Bahati Constituency Nakuru County at Dundori
Primary School and Dundori Youth Polytechnic there were discrepancies in Forms 34A and 34B in
the votes for the 3rd Respondent.
369. The deponent admitted that in Ndia Constituency, Kiangai Primary School Form 34A indicated that
the 3rd Respondent got 461 votes while Form 34B indicated he got 467. She attributed this to data
entry error. She denied the allegations that the Forms were not handed over in the prescribed manner
and that they were not stamped.
370. She denied the allegation that in Othaya Constituency, Nyeri County the Forms lacked handing
over notes and that Form 34B indicated the 3rd Respondent garnered 51,186 votes while the portal
indicated he had 51,184 votes. It was further alleged that the rejected votes were at 72 while the portal
indicated 124. It was her evidence that the 3rd Respondent garnered 51,186 votes and that the rejected
votes are 74 and not 124 as alleged.
371. The deponent admitted that in Naivasha Constituency, Nakuru County, there were some arithmetic
errors in completing Forms in Bishop Ndingi Sec School, Unity Farm Nursery, Manera Pry School,
Lakeview Pry School, Kihoto Trading Centre, Ngeya Pry School, Shermoi Pry School, Sher Social
Hall, Rev. Jeremiah Primary School and Mununga Primary School. She denied all other allegations
alluding to lack of signed forms and lack of handover notes. She averred that the number of votes cast
in favor of each candidate was clearly indicated and that the forms were signed by the Presiding Ocer
and Party agent.
372. The deponent denied allegations that in Wajir South Constituency, in Wajir County the Form 34B
lacked a bar code, and that in Serif Dispensary Polling Station the total valid votes indicated 113 votes
but the vote tally was more than the total valid votes.
373. She denied allegations that in Mandera East Constituency the IEBC stamp used was rectangular and
dierent from the circular stamp used on other forms, and that only two agents signed the forms while
one did not indicate the date, as well as his/her name.
374. The deponent refuted the allegation that in Lamu West Constituency not all pages and sheets were
signed. It was her evidence that there was no requirement in law for signing all pages.
375. The deponent rejected the allegations that in Turkana South Constituency there were discrepancies in
the number of valid votes and the summation of votes. She also denied that some Forms were neither
stamped or signed in this constituency.
376. She disputed the allegation that Trans Nzoia Constituency had a table format in its Form 34B that
included a column reading rejected‘, objected to‘ and disputed‘ not the norm in any other form. She
averred that Trans Nzoia is a County and not a constituency therefore there cannot have been a Form
34B in respect to it.
377. The deponent rejected the allegation that in Malava Constituency in Bulupi Pry School, Imbiakalo
Pry School, Mukhone Pry School, Chimoroni Pry School, Isanjiro Pry School, Machemo Pry School,
Lwanda Kabras Pry School, Shianda Pry School and Ikoli Pry School; the handing over sections on the
forms were not signed and that not all sheets/pages of form 34B were stamped.
378. She admitted that there were discrepancies in Form 34B in Bomet Central Constituency but only to
the extent that in Bomet Primary School, the Form did not show any rejected votes although there
was 1 rejected vote. She attributed this to a transposition error. All other allegations of use of excessive
whiteout and corrected gures as well as those of missing data from 63 polling stations were denied.
She also denied that there were discrepancies in the votes recorded in the Statutory Forms in Kabusare
Primary School.
379. She denied the allegations that in Kitui South Constituency there were unstamped pages in the Forms,
the number of Forms 34As submitted were not indicated, the Returning ocer signed the form but
did not indicate his name and that no agent of the Petitioner signed the Forms.
380. The deponent denied the allegations that in Elda Constituency the stamp used was not the ocial
IEBC Returning Ocer Stamp and the Returning Ocer neither indicated his name nor signed the
form. It was her evidence that the stamp used was the ocial IEBC stamp.
381. The deponent disputed the allegation that in Kuresoi North Constituency, no agents signed Form
34B, and that the Form had no indication of receipt/submission of Form 34A and did not have an
aggregate. She deposed that the Returning Ocer signed, dated and stamped the form and the total
number of votes for each candidate were clearly indicated on the Form. She averred that only agents
who are present sign forms and that there was no evidence that the Petitioners agents were present.
382. She denied the allegation that there was a discrepancy in the vote tallies in Garsen Constituency in
Wardei Primary School. She averred that the actual vote tally was 159 and not 169 as alleged. It was her
testimony that the votes garnered by each candidate were entered correctly in Form 34B.
383. It was deposed that there was a variance of 40 votes in Wajir South Constituency (IEBC NTC/080)
in terms of the total valid votes. It was averred that this variance was due to a computation error. The
deponent denied the allegation that the stamp was not authentic.
384. The deponent admitted that although there was a computation error in both Turbo constituency
(IEBC NTC/190) Kapkoross Primary school and Turbo Constituency (IEBC NTC/190) Kapsaos
Primary school the total votes cast in respect to every candidate was accurately tallied.
385. She rejected the allegation that in Likoni Constituency (IEBC/NTC/208), Form 34A of Mirima
Primary school did not bear any ocial stamp; an unstamped Form 34A was transferred to Form 34B;
Ushindi Baptist primary school results did not have an ocial stamp and data of unstamped Form 34A
was transferred to Form 34B. She deposed that the Forms 34A of Mirima Primary School and Ushindi
Baptist Primary School were duly stamped before the results were transferred to Form 34B.
386. The deponent denied the allegation that in Embakasi Central (IEBC/NTC/176) there were
discrepancies in the number of valid votes and valid votes tallyin: Kayole North (18), Imara Primary
(18), Bondeni (1), Thwatu (19) and Mwangaza (19). She deposed that the total votes for each respective
candidate was captured correctly as they were indicated in Forms 34 A and 34B.
387. The deponent denied the allegations that in Gem constituency, no agent signed Forms 34B; the stamp
on the Form 34B was inconsistent with the Returning Ocer‘s ocial stamp; the nal tally was
inconsistent with the stated constituency tally of 65,128 valid votes, thus 461 votes not accounted for.
She also denied that in Makadara Constituency (IEBC/NTC/186) there was no proper identication
of the Petitioners‘ agent and that not all sheet/pages were stamped with the ocial IEBC Returning
Ocers stamp.
388. She admitted there was a computation error in Dagoreti North Constituency where the total valid
votes were indicated as 104,789 while a summation indicated 105,840. She agreed with the petitioner
that the total number of valid votes received by the candidates was 105,840. She further responded
that the Returning Ocer‘s Stamp was authentic and the allegations that the Form did not have a bar
code was denied.
389. She rejected the allegation that in Sigor Constituency (IEBC/NTC/044) the name of the Returning
Ocer was not indicated in the statutory form. She further disputed the allegations that in Starehe
Constituency (IEBC/NTC/195) in Park Road primary school, there were vote discrepancies in the
Statutory Forms, not all the pages were signed; the stamp used was suspect and only Petitioners‘ agents
appended her signature. She deposed that Park road was polling centre with three polling stations and
these allegations were not specic to allow for a response.
390. She averred that on the 5th August 2017 the Chief Executive of the 1st Respondent issued a directive
invalidating any ballot paper that was not stamped and directing that the same to be marked as rejected.
She stated that the said directive was limited to ballot papers and did not extend to Forms 34A. She
deposed that if the intention was for the directive to extend to Forms 34A as alleged in the supporting
adavit, then the directive would have specically provided so.
391. She rejected in toto the allegation that in the following polling stations, the Form 34A as uploaded
in the Commission‘s portal, were not clear/illegible: Chaani primary school; Miritini World Bank;
Jomvuu Kuu primary school 2; Taratibu Social Hall 3; Miririni primary school 4; Aldinnah nursery
5; Jomvuu nursery 6; Swaleh Khalid Social Hall 7; Nuru CBR 001 8; Nuru Community based
Rehabilitation 8; Abu-Ubaida primary 9; Miritim primary school 10; Miritim primary school 11;
Railways Station hall 12; Mwamlai primary school 13; Ministry of Water Tanks 14; Mikindani Social
Hall 15; Owino Uhuru nursery 16; Kiembeni Baptist primary 21; Mtopanga primary 22; Concordia
primary 23; St Joseph Herman primary 25; Kiranzoini primary, Mwamanga; Jogoo; Football Ground;
Mbuwani primary; Emgwen primary; Kamkunji Market; Chemalal primary school; Chepkemel
primary school; Maraba primary school; Maraba primary school; Union primary school, Railways
Dispensary; St Andrews primary school; Railways Dispensary; Radar Station; Lelboinet primary
school; Tarus primary school; and Kiptaruso primary. She deposed that all these forms were clear and
legible.
392. It was denied that in Kiptendon primary school, Form 34As had not been signed by the Petitioner‘s
agent and the Returning Ocer had not indicated the reason for the failure. She deposed that the
1st Respondent did not gazette any polling station or centre known as Kiptendon primary school as
alleged. Further, only agents present could sign the relevant forms and no evidence was provided that
the petitioners‘ agent was present and was denied the opportunity to sign the form or refused to sign
the same for a valid reason.
393. It was denied that the allegation that in the following polling stations, Forms 34A had been led
by the same person as evidenced in handwriting: Kipkongen primary 48; Bemja primary; Chepsioch
57; Kabusagawat 87; Timbilil primary school 13; Kitum nursery; Cheptabach primary; Siwo Health
Centre Taboinyat primary 60; Tartar nursery 62; President 63; Chepngetuni primary 65; Keben
primary; Koilot primary school; Kepkechui primary school; Kapsabet Boys primary school; AIC
Kosira estate; AIC Baraton; Nandi primary school; Kamurguywo primary; Chenare primary; Kaptildil
primary; Kamonjil primary; Kapkimbimbir; Segut primary; Chepterit primary; and Belekenya 001.
She deposed that no report by a handwriting expert was produced to substantiate the allegation that
the same person lled or completed Forms 34A.
394. She countered the allegation that in Tikiyo primary school, the name of the Deputy Presiding Ocer
was not given to aid verication. She also refuted the allegation that Form 34A in Kilingile and Kataingo
primary school had not been signed by the presiding ocer or the deputy presiding ocer. She further
denied that in Njoguini primary school 6 Form 34As were unclear and unreadable. The allegation that
in Shimo La Tewa Forms 34As as uploaded in the portal had been severally repeated was denied by
the deponent.
395. She rejected the allegation that in Wareng High School, Kapsaret constituency, Ngesia Ward, Kiambaa
primary school the Forms had been crossed and did not indicate the candidates‘ results. She asserted
that the Forms from the referenced centre had not been crossed as alleged and they indicated the votes
the candidates garnered.
396. Further, she rejected the allegation that in Chebirir primary school only one agent signed form 34A and
that no reason was given as to why the others did not sign. In addition, she denied the allegation that
in Chepsioch primary no NASA agent signed Form 34A and no reason was given for this. She asserted
no evidence had been provided to show that there was any agent who was denied an opportunity to
sign the forms or that they refused to sign and provided reasons.
397. She denied the allegation that the Forms 34As were illegible and the photos incomplete in the following
polling stations: Lakole North Centre; Waso girls; Matho Dam; Kanjara Centre Dandu primary
school; Huruma primary school. She deposed that the referenced places were not polling stations. She
also denied the allegation that Form 34A was not signed by any agent in Bargugue Dam and Mathah
Boqay. She deponed that there was no mandatory legal requirement for agents to sign Form 34A and
that only agents who were present could sign. Further, there was no allegation that the Petitioners‘
agents were present or were refused the opportunity to sign.
398. The existence of a polling station by the name Habasein Boys primary school was denied along with
the allegation that only one party agent signed form 34A in that polling station and no reason was
given as to why the other agents did not sign. She further noted that there was no polling station by
the name Kisina primary school and contested the allegation that the stream had been changed from
1 of 2 to 2 of 2 using a pen.
399. She refuted the allegation that in Nunguni primary school the Form 34A was signed by one person
and was similar to that of Nunguni primary school in Kitui East. She however admitted that Form 34A
belonging to Maluma primary school was erroneously uploaded as being for Kalivu primary school.
400. She refuted the allegations that in Mitalani primary the handwriting in the form 34A was altered; that
in Makueni primary school the handwriting and signatures on the Form 34A appeared made up. She
deposed that other than the relevant forms having been signed and witnessed by agents, no evidence
had been provided to prove the allegation on the alteration of handwriting and further that the forms
referenced to were not annexed to the supporting adavit.
401. The deponent refuted the allegation that in Kanziko Cotton Stores the Forms were unclear and
illegible; in Tetu primary school; Mugumo primary school; Kivumbuni primary school; Kisayani
primary school; Kunguluni primary the tallying is incorrect. She averred that the specic form that is
alleged to be unclear was not identied and the tallying alleged to be incorrect was not specied.
402. She refuted the assertion that: the statutory form of YKivuti primary school was unclear, Kalima Kio
primary school had no code and the stream was indicated in the uploaded picture. Further that in
Molemuni primary school, the Form did not indicate the total results and was incomplete and that
Form 34As were not clear in Ta Farmer and Kitoroch 135. She averred that there were no polling
stations known as Ykivuti primary school, Molemuni primary school and Ta Farmers School.
403. She countered the allegation that in respect of; Mikimbi Full Gospel Grounds; Full Gospel Church
Ground Njukikiri; Teachers Advisory Centre Hall; Nembure polytechnic; ACK Muchonoke Church
Grounds; Faithful Church of Christ Makumbiri; Kwa Douglas Bus Stage; Full Gospel Churches
Grounds Ndunduri; Full Gospel Churches Grounds-Gitururu; Ngurueri Coee factory; Nguire
primary school; Muchangor primary school; Kavutiri primary school; Gatura Tea Buyng Centre;
Gichera primary school; Kangondi primary school; Kanduri primary school; Ugweri primary school;
Kithunguthia primary school; Gikuuri primary school; Ndamunge Tea Buying Centre; Kirimiri
Coee Factory; Thigingi primary school; Magara Tea school; Mugaari Tea Buying Centre; Kanyaueri
Tea Buying Centre; Kiameceru Tea Buying Centre; Kiandongó Tea Buying Centre; Kathari primary
school; Kathageri Youth Polytechnic; Muhanda primary school; Ramula primary school; Burlwolo
primary school; Nyangunda primary school; Tambach prison; Kapsabet prison; Eldama Ravine prison;
Nanyuki prison; Nanyuk prison; Vihiga prison; Kanoth primary school Kiritiri primary school;
Kauraciri market; Kanduku primary school; Marimari primary school; Ndithini primary school;
Raciina primary school and Kariari primary school the respective Form 34As had been led with the
same handwriting. She averred that no evidence had been provided to support the allegation.
404. She further contended, in relation to the allegation that there were no agents in Taveta prison; Moyale
prison; Embu Women prison; Kitui Women Prison; Kitui Prison; Machakos Main prison; Machakos
prison; Makueni prison; Nyeri Medium prison; Mwea prison; Kerugoya prison; Muranga prison;
Muranga Women prison; Maranjau prison; Kiambu prison; Kapenguria prison; Kitale medium; Kitale
women prison; Kitale main prison; Eldoret prison; Tambach prison; Kapsabet prison; Kabarnet
prison; Eldama Ravine prison; Rumuruti prison; Naivasha medium; Nakuru women prison; Kericho
main; Sotik prison; Bomet prison; Shikusa Farm prison; Busia women prison; Busia prison; Kisumu
women prison; Kibos main prison; Kibos medium; Homa Bay prison; Kehancha prison; Kisii women
prison; Nairobi Remand and Kilgoris prison, she was aware that the 1st respondent did not receive
and therefore did not reject any application from a candidate seeking to appoint agents in the
abovementioned polling stations or centres. She further stated that it had not been demonstrated how
the absence of agents had aected voting or tallying in the said places and/or how it had aected the
petitioners.
405. Ms Kassait denied the allegation that in Kinyaga primary school; Nyambori primary school; SDA
Mariari primary school; Kwa-Andu-Ambogo primary school; Mwondu primary school; Siakago Hall;
Itiira primary school; Ndutori primary school; Gangara primary school; Gatakari primary school;
Kathigagaceru primary school and Karauri primary school, the Form 34As had been led with the
same handwriting. She stated that no evidence had been provided to support the claim.
406. The deponent, in response to the claim that in Uruku Primary School the number of registered voters
was not indicated, stated that the number of registered voters in that station was 12, which number
was gazetted.
407. She deposed that: the 1st respondent did not gazette any polling station known as Gatinja primary
school and therefore could not comment on the claim that the Form 34A in respect of that station was
only signed by the 3rd respondent‘s agents and that no reason had been given as to why other agents
did not sign. In response to the claim that the form 34A was not clear in Runyenjes Municipal Hall,
she averred that all the forms for the three (3) polling stations were legible and that copies of the said
forms had been provided to the Court.
408. In response to the assertion that in Nduuri primary school the total number of registered voters and
total number of votes cast was not indicated and that the polling station was not legible, Ms. Kassait
averred that the said forms were legible. She further remarked that the total number of registered voters
and total numbers of votes cast was clear as were the polling station names. She stated that copies of
the said forms had been provided to the Court.
409. In response to the assertion that the form 34A in Kathungu Primary indicated the party agent to
be the petitioner and the 3rd respondent being shown as the candidate, she deposed that she noted
that instead of indicating their names, the agents for the respective parties simply indicated the names
of their principals. She further stated that this did not aect the results and that the petitioners did
not demonstrate how the indication of the principals‘ names materially aected the result of the
410. She denied the assertion that in Kithangari Tea Buying Centre the Presiding Ocer and the
Deputy Presiding Ocer had the same handwriting.She also denied Dr. Nyangasi‘s allegation that in
Kithagutari primary school the same handwriting had been used to ll and sign the form 34A and that
the form was a photocopy. She averred that the 1st respondent did not gazette any polling station by
the name Kithagutari primary school.
411. The deponent denied the allegation that the form 34A was not clear for Ciangera primary school.
She swore that the respective forms 34As for both polling stations at Ciangera primary school polling
station centre were clear and legible and that copies of the said forms had been provided to the Court.
She contested the allegation that the Form 34As for Kiathambu primary school, Kamwaa primary
school and Gwakathi primary school were not stamped.
412. She countered the deposition that in Gwakathi primary school the tally results had been cut o and that
the agent signed o as a NASA agent. She also denied the allegation the Presiding Ocer in Qvaaine
also signedGwakathi primary school‘s Form 34A. She stated that the 1st respondent did not have a
polling station under the name Qvaaine. She further denied the assertion that in St. Peters primary
school and Itururi primary school were not stamped.
413. She denied the allegation that in Mugwanjogu primary school and Mbaci primary school the
handwriting in the two forms was similar and that the form 34A for Kamarindo primary school was
illegible. It was her testimony that no expert evidence had been provided to demonstrate the similarity
of handwriting and that such similarity did not mean that the same person signed the forms in the 2
polling centres.
414. Ms Kassait denied the allegation that in Muruaki secondary school; Kahuru primary school;
Matundura primary school; Muthoni primary school; Munyaka primary school; Kaimba primary
nursery school; Kanyungi primary school Vijiweni Grounds; Likoni Muslim primary school;
Consolata nursery school; Mirima primary school Ngurubani primary school; Kamuchege primary
school; Karuangi primary school; Defathas; Karoti girls and Ciagini the same handwriting had been
used for all the Form 34As. She further denied the assertion that in Likoni primary school the Form
34A did not indicate the name of the Presiding Ocer.
415. She also denied the assertion that the Forms 34A were not stamped in Thome primary school; Gakuo
primary school; Kutus primary school; Karoti girls; Murinouko; Musinduko; Ichangi; Tongoye;
Karuangi primary school; Kamuchege primary school; Murubara Social Hall; Wanguru County
Counsil; Ngurubani primary; Wanguru secondary school; Samburu primary school; Mwambani
primary school; Chituoni nursery; Matumbi primary school; Mivirivirini primary school; Mlola
nursery; Vikolani primary school and Kipni.
416. The deponent denied the averments that the Deputy Presiding Ocer did not sign the Form 34A in
Mwambani primary school and that an evidently fake IEBC stamp was used in Chituoni nursery and in
Mugamba Ciura primary school. It was her testimony that the 1st respondent‘s stamp was authentic.
417. She further denied the assertion that both the Deputy Presiding Ocer and the Presiding Ocer did
not sign the Form 34A in Kafuduni primary school while in Mazerus primary the Deputy Presiding
Ocer did not sign the Form 34A.
418. Further she rebutted the following allegations:
(i) In Tarasaa Secondary the Form 34A had been led using the same handwriting and signatures.
(ii) In Ngao Social Hall the Deputy Presiding Ocer did not sign the Form 34A.
(iii) In Onwadei primary school and Tanan nursery the same handwriting had been used but there
were no signatures in the Form 34A.
(iv) In Imani Primary, Mswakini primary and Maua primary the same handwriting had been used
to ll the Form 34As.
(v) In Walkon, the Deputy Presiding Ocer did not sign and in Maua Primary the Form 34A was
not signed at all.
(vi) In Konkon the same handwriting had been used but no signatures had been appended, in
Gatuto primary, Kirinyaga Tech the Deputy Presiding Ocer did not sign and the Form was
not stamped.
(vii) In Kaitheri primary, Kaitheri youth polytechnic, Kiabarikire primary, Kianderi primary,
Karitha, Kirugoya coee factory, Kirigo primary, Valley road primary, Gakararu; Amani
gardens; Kiamuruga primary; Karaini primary; Holly Rosery primary and Karuri primary the
Form 34As were not stamped.
(viii) In Iego primary the same handwriting had been used to write and sign for agents.
(ix) In Mukarara primary and Kiawambogo primary the Forms had been led suing the same
handwriting.
(x) In Laciathuriu primary the Form had been signed by three Jubilee candidates and no reason
was given as to why the other candidates did not sign.
(xi) In Kisorngot primary the signatures were similar for all the agents.
419. Her averment was that in Pangani Girls Secondary there was no number of total votes cast or registered
voters indicated in the Form 34A. In addition she averred that Pangani Secondary polling centre had
several polling stations, all of which had the total number of votes cast and registered voters indicated
on the respective Form 34A and that copies of the said forms had been provided.
420. In respect of the allegation that the code was unclear or illegible in Kuni Primary, she swore that there
was no polling station with the name Kuni Primary.
421. In her deposition she denied the following allegations:
(i) In Empaash primary the Form had been signed by the same person and no record of the
registered voters was recorded.
(ii) In Kimulot primary the agents‘ signatures were similar.
(iii) In Murguiwet primary the agents‘ signatures were similar.
(iv) In Mugenyi primary two jubilee agents signed the Form and it was not indicated why other
agents had not signed.
(v) In Kapkweni primary school the agents had similar handwritings.
(vi) In Meru primary school all agents signed using one handwriting and no results were given.
(vii) In Mosque Road Hall and Nteere Park all agents had a similar handwriting.
(viii) In Kokoin Constituency, polling stations number Kimulot primary school, Murgiwet primary
school, the agents had a similar signature and handwriting.
422. She based her averment on the fact that no evidence had been provided to back up the claims nor had
it been demonstrated how similarity of signatures, if any, aected the results.
423. The deponent, in response to the allegation that in Pimbiniet primary there was no agent‘s signature in
the posted Form 34A, stated that only agents who were present signed the relevant Form 34A and that
no evidence had been provided to show that there were agents who were present but failed or refused
to sign the relevant forms.
424. She refuted the assertions that the information in the uploaded form had been cut out in Ololchurra
Centre and that in Nkosuash nursery, there was no entry for all the Presidential candidates in the
uploaded Form 34A. it was her testimony that the relevant forms for the abovementioned centres were
clear and legible and copies of the same had been supplied to the Court.
425. In denying the assertion that in Teldet primary school the Form 34A was illegible and unveriable
and that in Kiplegut primary school, the number of valid votes as well as the rejected votes were not
specied. Ms. Kassait swore that there were no polling stations known as Teldet primary school and
Kiplegut primary that were used in the 2017 Presidential Election.
426. The allegation that in Kapkilaibei primary school only independent candidates‘ agents signed the form
and no reasons were given as to why the other agents did not sign. She asserted that only agents who
were present signed the relevant forms and that no evidence had been provided to show that the
petitioners‘ agents were present but failed or refused to sign the relevant forms. It was also denied that
whiteout had been used to alter Form 34A in ‘Masset‘, stating that ‘Masset‘ was a non-existent polling
station.
427. The allegation that there were discrepancies in gures in Makutano Market was denied on the basis that
the allegation had neither been substantiated nor particulars of the same provided. She also rejected
the assertion in respect to Miriga, that Form 34A had not been stamped or signed.
428. She refuted the averments that the Forms 34A in Njukinjiru, Tinderet, Kalyet Primary School and
Gakoromone Market were illegible and unveried. She also denied that the form in Kathurini Coee
was only signed by the 3rd respondent agent and that in Keses, the picture form was incomplete and
in Kilelgut. She rejected the allegation that valid votes and rejected votes had not been specied. She
averred that there were no polling stations with the names Njikinjiru, Kathurini Cofee, Keses,Kilelgut,
Kalyet Primary School or Gakoromone Market used in the 2017 Presidential election.
429. While denying the allegation that there was a discrepancy in gures on form 34A in Makutano Market
polling station, North Imenti, the deponent contended that the allegation was not substantiated and
that no particulars had been furnished. Further, she denied that Form 34A in Masste Pry. polling
station, Bomet Central Constituency, had been erased using a white out and averred that the allegation
had not been proved and further, but most importantly, there was no polling station with the name
Masste Pry.
430. She refuted the allegations that Form 34A had no signature of agents in St Patrick Primary in Gilgil
Constituency. Further, she denied that form 34As in Ole Sultan Pry, Muricucuria ECD Primary,
Ndibai Primary and St Barnabas Trading had only been signed by the 3rd Petitioner‘s agents.
Discrepancies in the addition of gures in Munanda Primary, Gitare Primary and Nyondia Primary
were also denied.
431. In addition, she refuted that form 34A for Kahuho Primary, Kamathat Primary, Echacharia Primary
and Loldia Primary polling stations were illegible. The deponent also denied that Forms 34A in Ndogo
Primary, Itherero Primary and Kiunguria Primary were lled by the same person. Allegations that no
summations were made in Nuthu Primary and that the Deputy Presiding Ocer did not sign the form
for Komothat Primary were contested.
432. It was the deponent‘s averment that there were no polling stations with the names St. Patrick Pry,
Ole Sultan Pry, Muricucuria ECD Pry, Ndibai Pry School, St Barnabas Trading, Munanda Primary,
Gitare Primary and Nyondia Primary. Further, she refuted the allegation that form 34A were illegible
for Kahuho Primary, Kamathat, Echacharia Primary, Loldia Primary, Itherero Primary,Kiunguria and
Komothat Primary.
433. The deponent asserted that allegations of discrepancies in Bishop Ndungi Primary were not
substantiated. Further, she denied that only the 3rd respondent‘s agents signed in Milimani Primary,
Naivasha Constituency and averred that no evidence had been furnished to show that the petitioners
agents were present and denied the opportunity to sign the relevant form or that they refused to sign
the form for valid reasons.
434. She denied the allegations that the presiding ocers: Isaac M Omari Jeremiah Kumutai, Judy Doreen
Chelegat and Deputy Presiding Ocer sDerrick Ngetich and signed Form 34A in more than one
polling station.
435. Further she rejected the allegations that in the following polling stations the result did not tally
mathematically N. Chebelyon Pry; Murunga; Kapkagogoron Pry; Chepsumei; Kapkatoi; Madaraka
School; Rise And Shine; Birongo Pri; Ibeno Sec School; Matieko Dok Pry; Muramati Pry; Westlands
Pry; Hospital Hill; North Highridge Pry; Karura Forest Pry; Cheleta Pry; Mji Wa Huruma Pry; Kttc ;
Hospital Hill High; Kianjagi Pry; Seretut Pry; Bishop Ndingi School; Nyakinyua Pry; Rev Jeremiah;
Chekeliek Nursery; Cheplelakbei Pry; Muruguyu Woo Pry; Kwangoly Pry; Athi River; Sirimon;
Kithithi Pry; Kombe Pry. She averred that no evidence was provided to show or substantiate the claim
that the result in the mentioned places did not tally mathematically moreover, she deposed some of the
places mentioned were not polling stations.
436. She denied the allegations that the defects and irregularities outlined in Dr. Nyangasi‘s adavits render
the Statutory Forms invalid, null and void. She contested the allegations as unveried and incapable
of being relied upon as the basis upon which to nullify the declared results. It was her evidence that
the Presidential Election was conducted in accordance with the requirements of the Constitution,
the Elections Act and regulations thereunder as well as all relevant applicable laws and regulations as
demonstrated in the 1st and 2nd Respondents response to the Petition.
437. The deponent denied the allegation that there were persons other than the gazetted County Returning
Ocers, Constituency Returning Ocers and Returning Ocer for citizen residing outside the
country who signed statutory forms.
438. She deposed that that no elections were conducted in ungazetted polling stations/tallying Centres and
further that the alleged ungazetted polling stations/tallying Centres do not exist.
439. In relation to the variance in the total number of votes cast been the Presidential and county level
elections, she deposed that the said variance was not of 482,202 votes as alleged and is in any event
within acceptable statistical limits. She tendered in as evidence of this a document marked Ec.12.
440. In reply to the further adavit, Ms. Kassait deposed that the annexures marked as DNO-2A and
DNO-2-2A to the said further adavit were not supplied to the 1st and 2nd Respondents.
441. On the security features of the Statutory Forms, the deponent averred that the Commission developed
standards for its electoral goods prior to their procurement. The standards included specic security
features for each ballot paper and statutory form in order to prevent duplication, misuse, piracy, fraud,
counterfeiting and to improve controls. She deposed that all the ballot papers and statutory forms used
in the 8th August 2017 election contained these security features.
442. Some of the features employed on the result declaration forms 34A and 34B were averred to include:
guilloche patterns against which all background colours on the declaration forms were printed, anti-
copy patterns, watermarks, micro text, tapered serialization, invisible UV printing, polling station data
personalization, self-carbonating element, barcodes.
443. It was her testimony that each ballot paper included dierent colour coding of the background. She
averred that the security measures were to ensure that the Commission detects counterfeit statutory
forms or ballot papers and discharge its constitutional mandate of conducting secure and veriable
elections. In addition, she asserted that all ballot papers were to be stamped before issuance to a
registered voter to cast the vote. She deposed that this was an extra measure initiated by the 1st
respondent to ensure that the electoral process was secure. She added that lack of the stamp did not
invalidate or by itself speak to the authenticity of the ballot paper.
444. She concluded by conrming that all the Form 34A‘s received by the Commission at the National Tally
Center had all the above-mentioned security features.
445. I am convinced that, apart from the specic admissions made, the adavit of Immaculate Kassait
rebutted all the allegations made in the adavits of Dr. Nyangasi, in support of the Petition and
supplied evidence in support of the averments made by the deponent and where the evidence was
contained in the adavit of another deponent reference was made to that other adavit. I have taken
into consideration the eect, on the declared results, of the admitted administrative errors appearing
on the Forms 34A and 34B, and I have arrived at the conclusion that the said administrative errors do
not taint the declared results.
14. The adavit of the 2nd respondent - Wanyonyi Wafula Chebukati

446. The 2nd respondent led a replying adavit sworn and dated August 24, 2017. He deponed to being
the returning ocer for the August 8, 2017 presidential election.
447. He averred that both he and the 1st respondent had no stake in the outcome of the 8th August 2017
elections and that throughout the election cycle, they were neutral referees; their resolute mandate
being to provide the electoral infrastructure for the people of Kenya to exercise their sovereign will to
elect leaders of their choice.
448. He averred that after tallying all the votes, the presidential candidate who emerged the winner was
Uhuru Kenyatta, having garnered 8,203,290 votes; followed by Raila Odinga, who garnered 6,762,224
votes. He swore that this declaration was based on the contents of the Form 34C prepared from forms
34B forwarded to the NTC from the constituency tallying centres plus the tally of the diaspora votes.
449. It was his assertion that given the election management infrastructure that was deployed, the primary
results declaration forms (Forms 34A and Forms 34B) could not possibly have been interfered with
at all. He added that the forms were transmitted through the KIEMS system in the scanned format
and they had special security features that could not be replicated. Further that the security features
included anti-photocopy and self-carbonated copies upto a depth of six (copies).
450. He averred that the presiding ocers at the 40,883 polling stations were required to scan and
electronically transmit the original Forms 34A to both the constituency and NTC. In turn, the
constituency returning ocers were required to electronically submit to the NTC the Forms 34B for
purposes of tallying and declaring the results of the presidential election and therefore, the outcome
of the election could easily be veried by reconciling the gures in Forms 34A.
451. He swore that upon his assumption to oce, on 20th January, 2017, together with fellow
commissioners, they embarked on a process of managing the remaining part of the election cycle to
ensure that the 8th August 2017 election met all the constitutional and statutory ingredients of a
free and fair election. Specically, his task as the Chairperson was to provide policy leadership and
strategic direction to the Commission to ensure that the entire electoral infrastructure for elections
management was accountable, ecient, systematic and methodical.
452. He deposed that despite the numerous challenges arising from litigation against the Commission;
the commissioners ensured that the procurement of strategic electoral materials by the Commission‘s
secretariat was done in a transparent and timely manner; that the other electoral cycle processes
including the supporting technology were deployed in a manner that was congruent with the
constitutional and legal requirements of simplicity, accuracy, veriability, security, accountability, and
transparency.
453. He deposed that in compliance with the law, all the required steps and processes were rmly in place
for a free and fair election. He precedes to enumerate the steps that were taken to ensure compliance
with the Constitutional principles.
454. He deposed that it is neither true that the Commission presided over a shambolic presidential election
nor that the entire electoral processes had failed before and during the 8th August 2017 elections or
that they were riddled with grave breaches of the Constitution and applicable laws during the tallying
and transmission of results.
455. He averred that the presidential election met all the requirements of free and fair elections: they were
conducted through secret ballot; they were free from violence, improper inuence or corruption;
the entire electoral cycle was exclusively administered by the Commission; they were transparently
conducted; and they were administered in an impartial, neutral, ecient, accurate and accountable
manner.
456. Invoking Article 138(10) of the Constitution, he deponed that he is mandated, within seven (7) days
after the presidential election, to declare the result of the election as set out in Form 34C and deliver
a written notication of the result to the Chief Justice and the incumbent President which he did. It
was his testimony that throughout the electoral cycle, he discharged his mandate in full compliance
with the Constitution, electoral laws and the applicable regulations and oversaw the conduct of the
election in compliance with Article 81(e) of the Constitution. He deposed that he was not inuenced
by anyone at all and maintained high levels of professionalism.
457. As regards the Commission as a body, he swore that it conducted and supervised the election in
accordance with Article 81(e) of the Constitution. Particularly, that:
(a) every registered voter who participated in the General Election cast their vote by way of secret
ballot;
(b) polling stations were adequately secured by the police to ensure the electoral process was free
from violence, intimidation, improper inuence and corruption;
(c) the election was independently conducted by the Commission;
(d) candidates and various observers were allowed to have their appointed agents present at the
various polling stations to observe the voting process to ensure transparency;
(e) the said agents observed the closure of the voting process and were involved in counting of the
votes at the various polling stations to ensure that the administration of the electoral process
was done in a transparent, impartial, neutral, ecient, accurate, and accountable manner; and
(f) the presidential candidates‘ agents/representatives were given access to the various Forms
including Forms 34A and 34B thereby increasing the 1st Respondent‘s transparency and
accountability during the electoral process.
458. It was the 2nd respondents deposition that the Commission sta that operated the KIEMS gadgets
was trained in good time, and the gadgets were congured with the register of voters. He deposed
that the KIEMS sought to ensure a transparent, secure, veriable, reliable and accurate framework for
elections management. It was his testimony that the system allowed for integration of the biometric
voter registration, biometric voter identication, electronic results transmission and the political party
and candidate registration systeMs He averred that it was successfully deployed on August 8, 2017
and signicantly helped to increase eciency, eectiveness and accuracy of the electoral process. He
deposed that the system never failed.
459. He avers that the relaying and transmission of the results was done in compliance with section 39 of
the Elections Act Regulation 87 of the Elections (General) Regulations 2012, and the Court of Appeals
decision in the Maina Kiai case.
460. The deponent states that he was present at the NTC between 8th and August 11, 2017, tallying and
validating Forms 34B that were being electronically transmitted by the constituency returning ocers.
He attached as evidence copies of the Form 34Bs marked WWC-3. He averred that upon receipt of
these Forms 34B, he proceeded to collate and conrm the consistency of the results and availed the
Forms 34B to the presidential candidates through their agents for conrmation and verication. He
thereafter used the same results to tally and complete Form 34C in compliance with section 39(3)(b)
of the Elections Act. He tendered in as evidence a copy of the Form 34C marked WWC-4.
461. He avers that on August 11, 2017, upon receipt of the 290 Forms 34B from the constituencies and also
the tally of the diaspora, the presidential election results were conrmed by the presidential candidates
through their agents present as follows:
462. On the basis of these results, he avers that in compliance with Articles 138(4)and 138(10) of the
Constitution, he publicly declared the presidential results on August 11, 2017.
463. He testied that there were inadvertent and/or arithmetic human errors in a few of the Forms, which
errors were minor and did not have any eect on the outcome of the presidential election. In this regard
he tendered in as evidence a document marked WWC-5 and also referred to the adavit of Immaculate
Kassait, the 1st respondents Director Voter Registration and Electoral Operations.
463. Responding to the adavit sworn by Godfrey Osotsi in support of the petition, he deponed that
throughout the electoral cycle, the Commission variously engaged the petitioners (in person and
through their representatives), the 3rd respondent through his agents, the public and other interested
stakeholders in conformity to best electoral practices including the reform of electoral laws. He deposed
that there was no engagement in any partisan drive howsoever for the reform of electoral laws or at all.
464. He swore that the Commission fully complied with the law guiding the transmission of presidential
results, including through its website, which access was granted to the general public to download
Forms 34A, 34B and 34C.
465. In response to Godfrey Osotsis allegation that the commission did not have all the Form 34Bs at the
time of declaration of results, he deposed that the Commission had received all Forms 34B. It was his
testimony that to ensure the transparency of the process, all the Forms 34B and 34C were availed to
all presidential candidates and their agents for verication before declaration of the results. They were
all allowed to attend to the NTC at BOMAS to verify the said tally of the presidential votes, from
commencement to declaration.
466. In response to Godfrey Osotsis evidence that the petitioners were sidelined during the tallying process,
he deposed that no one was side-lined during the tallying process. He averred that he personally chaired
numerous consultative meetings with the petitioners agents to consider their concerns. He testied
that prior to thedeclaration of the nal result the petitioners' agents decided to leave the NTC for
unexplained reasons.
467. In response to the 2nd petitioners adavit sworn on August 18, 2017 disparaging the credibility of the
nal outcome of the presidential election, he deposed that the declaration and announcement of the
Presidential Election results on August 11, 2017 was done strictly and fully in compliance with the
Constitution of Kenya and electoral laws.
468. In response to the 1st petitioners adavit sworn on August 18, 2017, he stated that the commission
notied the public throughout the electoral cycle of the anticipated challenges and demonstrated
the alternative mitigation measures which included the conrmation of the petitioners agents in
verication of voters in the polling stations, tallying of results and transmission of the results.
469. In further response to the 1st petitioners adavit allegation that there were procedural aws, illegalities
and/or irregularities in the collation, tallying, verication and transmission of presidential election
results, the deponent stated that the tallying process carried out by the Commission was in compliance
with Article 81(e) and 86 of the Constitution as read together with Section 39 of the Elections Act. He
also deposed that at every result management level, the petitioners were allowed to have their agents
present to conrm the tallying, announcement and declaration of the results. He emphasized that
the electronic transmission of the results by the Commission was secure, prompt, accurate, veriable,
accountable and ecient. Further that all the results declaration Forms were subject to verication by
the candidates agents/representative and immediately thereafter forwarded to the National Tallying
Centre.
470. In further response to the 1st petitioners adavit evidence that there was avariance between the declared
result and the actual results as tallied by the petitioners the deponent averred that the Court should
take cognizance that the 1st petitioner deposed that they were given access to the Forms 34B through
their agents thus the issue of lack of transparency and accountability in the tallying process did not
arise at all.
471. The deponent denied the 1st petitioners allegation that the 1st respondent condoned voter intimidation,
undue inuence, bribery and/or agrant commission of Electoral oences by the 3rd respondent. He
denied Dr Nyangasis allegation thatthe 3rd respondent was declared winner without verication of all
the requisite documents. He deposed that all presidential candidates and their agents or representatives
were invited to verify the results before the declaration. He averred that he did not announce the nal
results of the presidential election until he received and validated the Forms 34B from the constituency
tallying centers.
472. He deposed that on August 10, 2017 the Commission received a letter dated August 10, 2017 from the
Petitioners Deputy Chief Agent, James Orengo raising concerns over the presidential election results.
It was his testimony that upon receipt of the letter, the Commission internally considered all the issues
and communicated its response via a letter dated August 10, 2017. He tendered as evidence copies of
this communication marked.
473. He swore that the declaration and announcement of the presidential election results on August 11,
2017 was done strictly and fully in compliance with the Constitution of Kenya and electoral laws,
contrary to the averments of the 2nd petitioner.
474. In conclusion, he deponed that the allegation in the petition that the Commission failed to take steps
against the 3rd respondent for alleged breach of the provisions of Section 14 of the Election Offenses Act
was untrue. He stated that on June 21, 2017, he wrote a letter to the Director of Public Prosecutions
(DPP) informing him of the alleged breach for his action. The DPP responded via a letter dated July
6, 2017 informing him that he had directed the Director of Criminal investigations to take action. He
tendered in as evidence, copies of the communication.
15. Replying adavit by Ezra Chiloba

475. The 1st respondents replying adavit was sworn by Ezra Chiloba, its Chief Executive Ocer on August
24, 2017. He averred that the 1st respondent conducted the presidential election on August 8, 2017
in accordance with the provisions of Articles 81, 83 and 86 of the Constitution, the Elections Act and
the Regulations thereunder.
476. It was his deposition that there were key milestones achieved in the lead up to the presidential election.
He annexed the Elections Operations Plan (EOP) as the roadmap towards free, fair and credible 2017
General Election. He asserted that the EOP was formally and publicly launched in January 2016.
Also annexed to the adavit as evidence was a copy of the audit report of the registered voters. Copies
of Gazette Notices were annexed to prove:
i. Closing the registration of voters pursuant to section 5(1) of the Elections Act as read together
with Regulation 12 of the Elections (Registration of Voters) Regulations on March 7, 2017.
ii. Opening the register of voters for verication of biometric data by members of the public
between 10th May and June 9, 2017.
iii. Certication of the register of voters in accordance with Section 6A (3) (a) of the Elections Act.
iv Publication of the timetable and roadmap for the party primaries and General Election.
v Gazettement of 40,883 polling stations and 338 tallying centres across the country including
the prisons and for the Diaspora. Annexed was a copy of the relevant Gazette Notice.
vi. Gazettement of County Returning Ocers, Deputy County Returning Ocers,

Constituency Returning Ocers and Deputy Constituency Returning Ocers through
various Gazette Notices, Addenda and Corrigenda, copies of which were annexed and marked
EC-11.
477. Among other milestones deposed to were that the Commission acquired and deployed an integrated
electoral management system for voter registration, voter identication, candidates registration and
results transmission. Further, there was recruitment, training and deployment of over 360,000 election
ocials across the country; and continuous voter education programmes undertaken across the
country using dierent strategies and platforMs
478. In addition it was deposed that there were over 15,000 individual observers, 105 international observer
institutions, 254 local institutions and more than 7,000 journalists from over 30 local and international
media houses were accredited to participate in the general election.
479. It was his testimony that despite the complex political and legal environment in the lead up to the 2017
General Election, the 1st respondent put in place mechanisms and infrastructure towards what has
been lauded as the most free, fair and credible election in Kenyas history.
480. Responding to the adavit by the 1st petitioner, the deponent stated that the general election was
conducted in a transparent, open and accountable manner. He averred that the process was peaceful
and credible, a fact conrmed by both local and international observers. He attached as evidence a copy
of various observer reports.
481. He deposed that the tallying and transmission of results was undertaken at the polling stations, collated
and declared at the constituency tallying centers and at the NTC, hence the results declared were
credible and represent the will of the Kenyan people. It was his testimony that the system used was
credible, transparent and accountable. Further, that there was no compromise or interference with the
system for results transmission before, during or after the declaration of the outcome of the presidential
outcome. He reiterated that the collation, tallying and transmission of the results were in accordance
with the Constitution, the Elections Act and the Court of Appeal decision and the Maina Kiai decision.
482. Referring to the documentary evidence on record, he deposed that the results declared were
substantially consistent with and a true reection of the actual results tallied and declared at the
gazetted polling stations with the consequence that the nality of the results declared by the 1st
Respondent could be faulted.
483. It was the deponents testimony in response to the 1st petitioners adavit that that the law was amended
vide the Election Laws (Amendment) Act, 2017 to provide for a period of four (4) months within
which to procure and put in place the KIEMs He averred that the 1st petitioners allegation in his
adavit evidence that electronic lectoral system may have been exposed to risk of interference was
speculative and untrue.
484. He deposed that the 1st petitioners allegation in his adavit that Petition No 127 of 2017, Dr Kenneth
Otieno v The AG & IEBC, that sought and got orders declaring the Elections Technology Advisory
Committee (ETAC) unconstitutional, was not defended by the 1st respondent was true. He averred
that the Commission led a defense and advanced arguments in the matter. He stated that the fact that
the Court ruled against it does not mean that it did not oppose the petition.
485. He further averred that the 1st petitioners allegation in his adavit falsely accused the 1st respondent of
ling Petition No 415 of 2016, Collins Kipchumba Tallam v The AG. This petition sought to declare
section 39(1C) of the Elections Act unconstitutional. The deponent denied this allegation and stated
that it was unfair and malicious to accuse the 1st respondent of ling the case as it was not a party to it.
486. He denied the 1st Petitioners allegation that the 1st Respondent failed to put in place several preparatory
measures to assure the credibility of the KIEMS system. He deponed that the KIEMS system
performed exceptionally well in identication of voters and results transmission. He averred that where
there were anticipated challenges in voter identication and transmission, the legal complementary
mechanism was invoked. He termed the allegation of failure in transmission and that of breach of
security as unfounded and untrue.
487. He denied the petitioners allegation that they were ambushed two days to the election date when they
were informed by the 1st respondent that over 11000 polling stations were out of range for the 3G and
4G network and were expected to transmit election results from locations other than gazetted polling
stations and/or manually is false.
488. He averred that the petitioners were not ambushed as alleged since in a workshop held on May 22,
2017, representatives of the petitioners were informed of the mapping of network coverage and how
the same had been shared by the mobile network operators. He deposed that the Communication
Authority of Kenya (CAK) at no time advised the 1st respondent against hosting a private cloud to
supplement the 1st respondents primary as it was satised with the Commissions arrangements.
489. The deponent denied the petitioners allegation that the 1st respondent delayed in carrying out testing
verication and deployment of technology. He deposed that the 1st respondent tested the KIEMS
system on June 9, 2017 as required by law. He averred that the 1st respondent also conducted other
tests, veried and deployed the KIEMS system.
490. It was the deponents testimony that the 1st petitioner made reference to an adavit of one Professor
Kaloki, which adavit was not served on the 1st and 2nd respondents. The 1st respondent reserved its
right in respect of what it termed a false allegation that Professor Kaloki had sworn an adavit in
support of the petition. He deposed, without prejudice to the preceding averment, that the allegation
that the CAK advised the 1st respondent against hosting a private cloud to supplement the 1st
respondents primary and disaster recovery sites was untrue. He deposed that on the contrary, the CAK
was satised with the arrangements put in place by the 1st Respondent.
491. He attached a copy of a letter dated July 31, 2017 from the CAK marked EC- 14 as evidence.
Accordingly, he averred that the allegation, by the 1st petitioner in his adavit that the KIEMS
system was compromised and that the presidential election was substantially conducted using manual
processes, lacked merit.
492. He disputed the petitioners allegation that the voting process was not conducted in accordance with
Article 86 of the Constitution. He deposed that the results were transmitted from polling stations and
constituency tallying centres as by law required. He denied the petitioners allegation they had not been
supplied with all Forms 34B and all Forms 34A. He deposed that they were supplied with all the Forms
34B all the Forms 34As were available on the public portal. He averred that by their own letter dated
14th August 2017 the petitioners acknowledged having been provided with access to all the requested
forMs He attached copies of the relevant correspondence marked EC-15.
493. The deponent denied petitioners allegations that the Form 34As and 34Bs had substantial, systemic,
glaring, qualitative anomalies that put to question the credibility of the presidential election. It was
his testimony that the petitioners did not dispute the presidential election results as declared but only
alleged unsubstantiated qualitative anomalies.
494. Mr Chiloba averred that the petitioners deposition that they had compared Formsn34A and 34B
supplied by the 1st Respondent was a tacit admission that the Petitioners had received Forms 34A and
34B from the 1st Respondent. He deposed that there were no massive numerical discrepancies as alleged
by the petitioners that aected the results declared by the 2nd Respondent.
495. The deponent denied any partiality on the part of the 1st respondent as alleged by the petitioners. He
deposed that he was aware that the 1st Respondent wrote to the Director of Public Prosecutions to
discharge his constitutional mandate. He attached, as evidence, a copy of the said letter marked EC-16.
It was further deposed that voting was conducted only in gazetted polling stations and only results
for the gazetted polling stations were tallied and ultimately declared. He adopted the averments in the
adavit of Immaculate Kassait on these allegations.
496. Responding to the adavit of Apprielle Oichoe, he reiterated and adopted the responses in the replying
adavit sworn by James Muhati. In addition, he deponed that it was not true that the 1st respondent
replaced Forms 34A and entered results in Forms not provided for. He deposed that results in all polling
stations were entered in the statutory Forms 34A.
497. He further deponed that although all presiding ocers had been trained and instructed to take an
image of the Forms 34A for transmission through the KIEMS, in some instances, they decided to take
images of other documents for purposes of testing the kits. Consequently, given that one of the security
features of the system was for the system to capture and transmit one image only for each of the six (6)
elections and thereafter lock itself, the test documents were transmitted instead of the Forms 34A.
498. He averred that upon noting this error, the 1st respondent uploaded the Form 34A for the said polling
stations on the public portal. He deposed that this inadvertent transmission of wrong images did
not aect the results as contained in Forms 34A. As example, he annexed a letter dated 16th August
2017 from the Presiding Ocer Bulla Dadacha Stream 02 polling station explaining the erroneous
uploading of an exercise book page marked EC-17. He deposed that upon noting this error, the 1st
respondent uploaded the Form 34A for the said polling stations on the public portal. He annexed said
Form 34A marked EC-18 as evidence.
499. He termed the report in Aprielles adavit titled The Travesty that was the electoral process Kenya
2017 as untrue. He deposed that the alleged report was not dated or signed and neither was the source
or author indicated. He averred that it was a document with no probative or evidentiary value. He
reiterated that the system deployed by the 1st respondent was not compromised and that the allegations
contained in the said report were without basis.
500. In response to the adavit of Mohamed Noor Barre and Ibrahim Mohamud Ibrahim, he reiterated
and adopted the responses contained in the Replying Adavit of Abdibashir Alinoor. In response to
the adavit of Benson Wasonga, Mr Chiloba averred that the result of the election from each polling
station was contained in Forms 34A, the declaration of the results of the presidential election was on
the basis of the results contained in Forms 34B from the 290 constituencies and the diaspora. He also
swore that the total number of rejected ballots as declared in Form 34C was 81,685 and not 477,195
as alleged. He stated that Mr Wasonga had misconstrued the statistics published on the public display
mode of KIEMS which was not a result within the meaning of the law. He deponed that the cause of
the variance between the actual number of rejected ballots and the public website were as a result of
human error.
501. In response to adavits of Moses Wamuru, Koitamet Ole Kina and supporting adavit and 2nd
adavit of Godfrey Osotsi, he reiterated and adopted the responses contained in the Replying
Adavits of Amina Shaku and James Muhati respectively.
502. In response to adavit of George Kegoro, he reiterated and adopted the averments in the adavit
sworn by Immaculate Kassait. He responded that the statistics displayed electronically did not
constitute and were not the results of the presidential election. He deposed that the nal result of the
presidential election is veriable and certiable from an inspection of Forms 34A and 34B.
503. He denied Mr Kegoros allegation that IEBCs portal showed varying levels of votes cast for the dierent
elective oces. It was his testimony that upon closer inspection of the subject Supporting Adavit of
George Kegoro, it was evident that it was not underpinned in the petition. He deposed that it lacked
foundation in the pleadings and or primary adavits of the petitioners and could only be described
as an attempt to litigate a substantive presidential petition under the guise of presenting a Supporting
Adavit to the Petition herein. He averred that since it was led out of time, the adavit suered the
fatal defect for being time barred and in blatant deance and abuse of this Honourable Courts process
and the law and ought to accordingly be struck out.
504. In response to the adavit of Olga Karani, he reiterated and adopted the averments in the adavits
sworn by Immaculate Kassait and James Muhati. In addition, he stated that the allegations in Ms
Karanis adavit lacked proper specics and were untrue. He deposed that in instances where a voter
could not be identied biometrically, the said voter would still be identied by keying in the KIEMS
system their alpha numeric details. Contrary to her allegations, he averred that agents at the National
Tallying Centre were provided with access to the Forms 34A and 34B and given an opportunity to
verify the results before declaration.
505. He emphasized that the presidential election held on August 8, 2017 was conducted in accordance
with the Constitution and the Electoral laws and that the same was free, fair and credible.
16. James Muhati's adavit evidence sworn on August 24, 2017

506. He swore that he was the Director in charge of Information Communication and Technology (ICT)
for 1st respondent. His deposition was in response to matters touching on ICT in the petition and
adavits of Raila Odinga, Apprielle Oichoe and Godfrey Osotsi.
507. He deponed that consequent to the 2007 General elections, a number of concerns were raised relating
to human intervention and how it aected the credibility and integrity of the results. He deposed
that the concerns were addressed in the Independent Review Commission also known as the Kriegler
report. It was his testimony that the 1st respondent took on board the recommendations of the Kriegler
Report to utilize ICT in future elections to improve their accuracy, transparency and veriability. In
this regard, the 1st respondent deployed use of ICT in the following: Biometric Voter Registration
(BVR), Electronic Voter Identication Device (EVD), Candidate Nomination System and Result
Transmission System (RTS).
508. It was his testimony that when the 1st respondent utilized ICT as forestated in the 2013 General
Election, the system experienced technical challenges. He deponed that these were addressed by
amending Section 44 of the Elections Act. The amendment mandated the Commission to establish
an integrated electronic electoral system which would enable biometric voter registration, electronic
voter identication and electronic results transmission and thus the Kenya Integrated Elections
Management System (KIEMS) was born.
509. He swore that the system was put in place and successfully deployed in the 2017 elections. He deponed
that it enabled the 1st respondent to successfully verify the biometric data by the public during the
May 10th – June 9th verication exercise as required by law, successfully verify voters on polling day
and successfully transmit the results of the election results from polling station to constituency and to
the National Tallying Centre.
510. He deponed that he was aware that the legislative framework was the Constitution, Statutory Provisions
and Regulations. He cited Articles 81 and 86 of the Constitution as read with section 4(m) of the IEBC
Act which obligates the voting system used to be simple, accurate, veriable, secure, accountable and
transparent. He averred that the KIEMS was established with the approval of the Elections Technology
Advisory Committee (ETAC) established under section 44(8) of the Elections Act and comprising
relevant agencies and institutions including political parties. He annexed minutes marked JM-1 of ETC
to this eect.
511. He deposed that the Commission and ETAC ensured that the ICT put in place satised the
constitutional and Statutory threshold required under section 44(1) of the Elections Act, and had
capabilities pursuant to section 44 of the Elections Act. He also averred that the Commission, pursuant
to section 44(5) of the Elections Act published the Elections (Technology) Regulations 2017 on April
21, 2017, 3 months before the general elections. He deponed that the 1st respondent developed and
implemented a policy to regulate the progressive use of technology in the electoral process as required
and annexed as evidence a copy of the said policy marked JM-2.
He also annexed copies of the public notices on the testing of the technology to be deployed and the
minutes of the simulation carried out at Bomas of Kenya marked JM-3A and JM-3B.
512. On statutory compliance and implementation, he averred that at the time of carrying out the general
election, the Commission had fully and successfully deployed the use of ICT in the following manner:
First, the Commission had developed and implemented a policy to regulate the progressive use of
technology in the process as required under section 44(2) of the Elections Act. Secondly, prior to
deployment of KIEMS, the commission undertook a series of tests on the KIEMS including public test
carried out on June 9, 2017, (60 days before the elections) and a simulation done on August 2, 2017.
Lastly, as part of preparations for the deployment and use of ICT in the elections the Commission
developed a robust training manual and schedule aimed at building the capacity and competence of all
its sta members and included training of candidate agents on the KIEMS systeMs
513. On the implementation of ICT in the 8th August general election, he averred that the use of technology
comprised voter identication and result transmission system. The transmission component in
KIEMS enabled the Commission to relay the presidential election results and the statistics from the
said results from the polling stations to the constituency tallying centre and the NTC in respect of the
514. He deposed that during the transmission of election results through KIEMS the Presiding Ocer
would complete Form 34A as required by law then input into the KIEMS the statistics of the results
as captured on Form 34A. The Presiding Ocer would then take the image of Form 34A. Before
sending the data, the Presiding Ocer would rst show the entries made to agents of the candidates
and political parties for conrmation. He annexed as evidence, copies of the directions that were issued
to the Presiding Ocers, the Training Manual and a transmission ow chat marked JM-5A, JM-5B
and JM-5C respectively.
515. He averred that the allegations in the petition that the relay and transmission was not simple, accurate,
veriable, secure, accountable, transparent, open and prompt and that Article 81 e(iv) and (v) of the
Constitution were contravened was inaccurate and misleading and no evidence had been adduced to
buttress the allegation.
516. On transmission, he swore that the transmission required 3G and 4G mobile network which was
provided by three Mobile Network Operators (MNOs) being Safaricom Limited, Airtel Kenya
Limited and Telkom Kenya Limited for whom the Commission entered into contracts with MNOs
for a secured transmission of the results. He referred to a meeting held on the 22nd day of May 2017,
minutes (marked JM-6) of which he annexed, between the Commission and MNOs who had been
identied by the Commission.
517. He deponed that for purposes of oering election results transmission services, the country was zoned
into thirteen (13) Zones with two (2) MNOs providing election results transmission services for each
zone. He averred that, of the two MNOs in every zone, one MNO was the primary service provider
and the other MNO was the secondary service provider. The MNOS were assigned zones to ensure
consistency and accountability in operation and availability of service.
518. It was his testimony that in a zone where an MNO was neither a primary nor secondary service provider,
it was not expected to provide any results transmission system since KIEMS could only accommodate
two SIM cards. Accordingly, the Commission gave such provider the coordinates of polling stations
within the zones to enable the service provider prepare itself for the provision of results transmission
services. The zoning was to ensure eective data segmentation into manageable parts.
519. He averred that following a mapping exercise carried out by the Commission and analysis by MNOs,
it was ascertained that about 11,155 polling stations within the country were not eectively covered
by either 3G or 4G Network and this communication was sent out to the public vide a notice dated
6th August, 2017. He annexed a copy marked JM-7 of the said notice. He averred that it became
apparent to instruct presiding ocers to ensure that they move to points where there was network
coverage or in the alternative to constituency tallying centres in order to transmit results. He further
states that the Commission was nevertheless able to avail all form 34As in a public portal through
https:formsiebc.or.ke
520. On security and veriability and in response to allegations on the compromise of KIEMS and access by
unauthorized third parties, the deponent averred that the allegations are misleading and unsupported
by evidence or explanation. He deposed that the Commission engaged a highly qualied team and
eventually partnered with internationally recognized and accredited institutions to provide top of
the range government-grade information security system. He annexed copie of certication and
accreditation documents from the providers with a guaranteed 99.99% security service to the whole
system.
521. It was his testimony that the architecture of the KIEMS has in-built as well as process related features
aimed at guaranteeing the integrity and security of the system. He annexed as evidence the architecture
index and ow chart marked JM-9. He also averred that the Communication Authority granted
approval contrary to the allegation that the Commission disregarded the advise of the Communication
Authority as evidenced by the letter dated 31st July 2017 a copy of which was annexed as evidence.
522. The deponent listed some of the security parameters entailed in the KIEMS system and information
management environment. These include conguration of only pre-determined and authorized tablets
for transmission of which transmission was under constant round the clock automated monitoring,
secured network spectrum with a twin high-level perimeter rewall which lters unauthorized
transmission, robust database management solution with recommended security options such as pre-
encryption or results and secure Virtual Private Network (VPN) and fourth tier security measure, a
granular role-based access control and user management for the entire RTS.
523. It was his testimony that this fourth-tier security measure meant that:
(i) only authorised users could access the system through randomly issued credentials none of
which was biometric
(ii) the permitted users had distinct but interdependent roles at dierent levels, such that not a
single person could perform an end to end operation in the system
(iii) no password was issued to any of these users of the system until the eve of the election.
524. He averred that technical safeguards were introduced as the Commission had outsourced the network
provision services from the MNos These safeguards included use of unique specialized SIM cards
congured on secured APN for result transmission from KIEMS devices; Static Internet Protocol
addresses for use in specic gadgets where the SIM Cards could only be used within the Commissions
Access Point Network (APN); the use of specialized SIM Cards MSISDN which should not allow
any duplication and was disabled for any SIM Card cloning; the SIM Cards were disabled for voice or
text messaging; and a unique internet mobile subscriber identity (IMSI) a unique identifying number
within the network which is the primary identier of the subscriber.
525. He deponed that all the SIM cards used for transmission were placed under monitoring and periodic
reports generated conrming that the cards were transmitting data. It was his testimony that that no
intrusion or compromisewas noted in the system.
526. He averred that the electronic result transmission system was congured in a way that enabled it to
detect any SIM card which was not in the list of those assigned by the MNos The SIM cards transmitted
the results in the form of Hyper Text Transfer Protocol (HTTP) packets encrypted with Secure Socket
Layer (SSL) technology. He deposed that this is a concealed protocol used by the internet to dene
how messages are formatted and transmitted. The link was meant to secure all the data by securing it
with a code which was not availed to any of the MNos He averred that the sole duty and obligation of
the MNOs was to transmit the data and monitor the continuous ow of such data.
527. He swore that the election results data were all transmitted wirelessly across the 3G & 4G network
installed and secured by the Commission with controlled access with a clear trail and event logs that
capture log-on and log-o data according to time and user name.
528. It was his testimony that as a monitoring and control tool, the MNOs generated and provided Call
Data Records commonly referred to as CDRs which were forwarded to the Commission at intervals.
He averred that studied and ascertained that the CDRs showed no stoppage in transmission of data
or intrusion by any strange unidentied number. He deposed that the cyber security procedures
and safeguards protected against any possibility of intrusion by an unauthorized third party and no
evidence had been adduced to demonstrate any compromise, intrusion or unauthorized access/ entry
by any party
529. He conrmed the position set out by the 2nd adavit of Godfrey Osotsi sworn on 18th August that
the Presiding Ocer was required to input the QR code into the KIEMS upon which the machine
became polling station specic in terms of data and usage. He deposed that the KIEMS cannot allow
more voters that those provided for in the polling station and cannot therefore transmit results where
there are more votes cast that the number of registered voters at the particular polling station. As such,
he disputed the allegation that in some stations more voters than those registered were recorded.
530. On the implementation of the complementary system, the deponent reiterated the need to comply
with Article 38 of the Constitution. He deposed that where a voter cannot be identied by the device
the Presiding Ocer shall invite the agents in the station to witness that the voter cannot be identied
using the device, complete verication Form 32A in the presence of the agents and candidates, identify
the voter using the printed Register of voters, and once identied proceed to issue the voter with the
ballot paper to vote.
531. The deponent referred to Regulation 83 of the Elections (General) Regulations 2012 as the
complementary system of result transmission envisaged by law. He averred that the complementary
mechanism for failure to transmit results involves physical delivery of forms 34A by the Presiding
Ocers to the Returning Ocers in the respective constituencies. The deponent referred to the Court
of Appeal decision Civil Appeal No258 of 2017 which involved the petitioners, where the Appellate
Court directed the Commission to comply with its internal memorandum issued on July 27, 2017.
532. With respect to issue of access to the back end of the system, the deponent alleged that it was erroneous
for the Petitioners to claim that they demanded that access. On the contrary, he averred that the
petitioners had demanded that since the Forms 34A were not being displayed on the screen, the entire
system should be switched o. He deposed that as a way of enhancing transparency, the Commission
volunteered to provide secure dedicated links to agents of the presidential candidates to have access
to the forms 34A being transmitted from polling stations. He asserted that the petitioners claim
that facilitating the access took more than eight (8) hours and that the same access was not available
outside the auditorium underscores the fact that the Petitioners did not appreciate the importance of
guaranteeing security of the system.
533. Based on the totality of the foregoing responses, the deponent averred that the Commission conducted
the election in accordance with the Constitution the applicable law and regulations in relation to the
use of technology.
17. Adavit by Davis Kimutai Chirchir in response to the Petitioners Adavit

534. Mr Chirchir deponed that he was the Chief Presidential Agent of JP for the 2017 General Elections. He
averred that he was conversant with the conduct of elections including voting, counting, tallying and
transmission of results from the training given by IEBC to party agents and others, his own knowledge
and from his role as the Chief Presidential Agent.
535. He denied Petitioners allegations that the elections were not free, fair, transparent, accountable,
credible or veriable. He deponed the on the contrary, they were conducted in accordance with the
Constitution and the Elections Act. It was his testimony that a comparison of Form 34A and the actual
results announced together with the text transmitted results conrms that there was no interference.
536. He deposed that on or about May 2016 the Coalition for Reforms and Democracy (CORD), the
predecessor of the National Super Alliance (NASA), held a series of nationwide protest rallies to agitate
for electoral reforms which included: use of technology in elections, legal framework for verication
of the principal register of voters and removal of the IEBC Commissioners.
537. He deposed that as a result, a joint parliamentary select committee was established to inter alia agree on
electoral reforms that had to be undertaken before the general election of August 2017. He averred that
the Election Laws (Amendment) Act, 2016 (the Amendment Act) made provision for inter alia: the
resignation from oce of the Chairperson and Commissioners of the IEBC; the Audit of the Register
of Voters by a reputable professional rm; the establishment of an integrated electronic electoral system
that enables biometric voter registration, electronic voter identication and electronic transmission of
results; and opening of the Register of Voters for verication of biometric data by members of the
public.
538. It was deposed that the current IEBC was reconstituted in January 2017 following a bipartisan process
where the candidates were vetted through a special sitting of Parliament. The deponent also averred
that at least 41 cases were led challenging the implementation of the amended Act by the IEBC within
the past twelve months, majority of which were led by NASA or persons aliated to NASA.
539. The subject matter of the cases included inter alia, the procurement processes of the technology and
voting materials that were used in the 2017 general elections, the complementary mechanism set up by
IEBC for identication of voters and transmission of election results and the nality of results declared
at the constituency level by the Constituency Returning Ocer.
540. He stated that all this litigation demonstrates NASAs habit of constantly ling cases challenging the
decision of the IEBC and revealed their intention to ensure that IEBC conducted the 2017 elections on
NASAs terms He deposed that from his observation and the communications from IEBC to all parties,
the 2017 general elections were conducted in compliance with the various decisions of the Courts with
regard to the various aspects of the elections.
541. On the conduct of elections, Mr Chirchir averred that election materials and ballot papers were received
in all polling stations across the country. He deposed that there was no incident of lack of ballot
papers and only insignicant cases of malfunctioning of the electronic voter identication devices
were reported. It was his testimony that the conduct of 2017 elections was an improvement from the
2013 elections in that the Commission had deployed the use of technology to enhance transparent,
accountable, and credible and veriable elections. To buttress this assertion, he annexed observer
reports.
542. It was Mr Chirchirs testimony that the voting process was a marriage of electronic and manual
processes. He deposed that the elections process was neither wholly and exclusively manual nor
electronic. He averred that it was a hybrid complementary process in that technology was incorporated
into a manual process to enhance accountability and transparency
543. He swore that the 1st respondent informed all the agents and representatives of political parties at the
National Tallying Centre that the nal results would be ultimately declared based on Form 34B. As
such, it was his testimony that the results that were being transmitted were provisional based on the text
message transmissions (the alpha numeric). In addition, the screened results were provisional subject
to conrmation of the Form 34B from the respective constituencies. He deposed that in the event of
any discrepancy between the televised data (based on the alpha-numeric data) and Form 34B, the latter
would prevail.
544. Mr Chirchir deponed that candidates or their agents were allowed to be present when the votes for each
polling station were being counted and tallied. He averred that the election process complied with the
provisions of Regulation 79(1) of the Elections (General) Regulations, 2012 which requires a presiding
ocer of every polling station, the candidates or their agents to sign Form 34A which contains the
presidential election results. He deposed that in the event that the candidate or agent fails to sign Form
34A, the candidate or agent is required to record the reasons for refusal or failure to sign.
545. He averred that the IEBC acted in a transparent manner during the entire vote counting, tallying and
transmission exercise. He stated that all Forms 34A were made accessible to all parties at the polling
stations while all Forms 34B were given to candidates or their agents at the constituency tallying centres
and a print copy was availed at the National Tallying Centre. He further deposed that the IEBC was
in constant communication with agents of the candidates at the National Tallying Centre updating
them when Forms 34As and Forms 34B were received from the presiding and returning ocers. He
denies the averments that the petitioners agents were ejected from polling stations in central and rift
valley regions or elsewhere.
546. It was his averment that the petitioners were making sensational statements without providing any
evidence to support their claiMs These statements include that there were 14,000 fatally defective
results that aected over 7 million votes; that in more than half of the 290 constituencies the Returning
Ocers failed to indicate the number of Forms 34A; that the IEBC is yet to receive 5,015 Form 34As
which represent in excess of 3.5 million votes; that the Form 34As the Petitioners have received from
IEBC showed fatal and irredeemable irregularities; that the votes cast as captured in Forms 34A dier
from results as captured in Forms 34B and that the rejected votes/ballots were unlawfully deducted
from the petitioners and added to the 3rd respondent.
547. As part of his evidence, he relied on an analysis marked DKC6 showing that the total voters in areas
gazetted by IEBC as not having the 3G or 4G network was 4,433,652 and not the 7,700,000 as stated
by the petitioners. Out of these 4,433,652 voters, a sum of 3,506,558 voters representing 79 % of
the registered number of voters turned up to vote and their votes were tallied. It was his testimony
that election observers monitoring the gave the process a general clean bill of health save for a few
isolated incidents. He relied on reports from the African Electoral Observation Group, the Elections
Observation Group (ELOG), EAC Observer Mission, ICGLR Observer Mission, AU Mission, and
Commonwealth Mission. He also tendered them in as evidence as well as an audio/video recording
by John Kerry.
548. Mr Chirchir deposed that JP won a majority of the seats in all other elective positions, retaining their
popularity and it to new frontiers. He averred that this was an indication that the Jubilee Party was the
preferred party across the country. He tendered in as evidence graphical representations of the deposed
numeric strength.
549. He denied the allegation that the 1st respondent illegally Streamed results not veried by Forms 34A
to create an impression that the 3rd respondent was winning. He deposed that: the Streaming of the
results by the IEBC was intended to ensure that the tallying process was open and transparent; the
IEBC was not prohibited from Streaming the electronically transmitted results provided the same was
veried using the forms before the declaration of the results; the Streaming of results electronically
could not, in any event, have aected the results nally declared. The nal results were based on Forms
34B obtained from the constituency tallying centres.
550. The deponent averred the petitioners approached the Court in a deprecatory and contemptuous
manner aimed at bullying and intimidating the Court to nd in their favour. As evidence, he cited
various statements made by the petitioners or their representatives.
551. He deposed that the petitioners unfortunate rhetoric about the death of Mr Musando, the Deputy
ICT director was reckless, irresponsible and sensational and was aimed at distracting from the real
issues in the instant dispute in that: the said death was under investigations and the petitioners were free
to avail the investigative agencies whatever evidence in their possession; the KIEMS was not handed
over to IEBC but remained in the hands and management of the contracted consultant, a French rm,
Safran; and, the IEBC had well-established structures including sucient well-trained ICT personnel
capable of handling the electoral process.
552. Mr Chirchir denied petitioners allegation that the presidential election results were computer
generated. He deponed that that the electronically submitted data, with timestamps, had been analyzed
against the results of accumulated votes for the 3rd respondent and the 1st petitioner accumulated for
the span of transmission so as to plot a graph of the 3rd respondents votes minus the 1st petitioners votes
as a percentage against the timestamps of submission.
553. He deposed that from what was observed from the graphs, the data showed that the lead oscillated
between the two at the start of transmission. Splitting the transmission times into time sections, the
rst hour showed oscillations between the two ranging between 42.6% and 3.2% percentage dierence
which were observed to be very random. In support of this averment Mr Chirchir, relied on copies of
data from IEBC showing timings at which results arrived and an analysis of the matrix showing how
the computer maintained the data with percentages. He also tendered in these as evidence showed the
time stamp sheet for the rst presidential results which Streamed in and this were from Narok Women
Prison received at 17:07hrs indicating that 10 out of the 20 registered voters had voted.
554. In response to the petitioners allegations that the rejected votes were substantial, Mr Chirchir averred
that none of the candidates were in any way deprived of their legitimate votes in the postings of the
rejected votes. He deponed that the rejected votes were erroneously entered on the text transmissions of
votes that were provisional. In the end they did not count as the rejected votes were properly captured
in Forms 34A and Form 34B. He averred that correct rejected votes eventually went into Form 34C
and informed the nal declaration of the results. He deposed that the rejected votes did not exceed
90,000 votes.
17. Adavit by Davis Kimutai Chirchir in response to the Adavits of George Kegoro
555. The deponent, in his sworn testimony averred that Mr Kegoro had exaggerated facts, peddled outright
falsehood and supressed material facts in a bid to mislead this Court and obtain an unjust advantage
in favour of the petitioners. He asserted that Mr Kegoro‘s averments were vague and unspecic.
556. He added that the process of voting, collating, tallying and declaration of results was conducted and
done in full or substantial compliance with the provisions of the Constitution and all electoral laws;
that the presidential results announced by the 2nd respondent on August 11, 2017, were accurate and
veriable in accordance with the standards established by law and were announced in a transparent
and lawful manner as contemplated by Article 86 of the Constitution and the Elections (General)
Regulations, 2012; that most local and international observers accredited by the 1st respondent have
issued preliminary reports terming the election substantially free, fair and credible notwithstanding
the minor transmission problems experienced during the election process and lastly, that the 1st
respondent has posted on its website scanned copies of each and every Form 34B received in its servers,
which upon collation and tallying into Form 34C, demonstrates that the election results announced
on August 11, 2017 were accurate, veriable, transparent and lawful.
557. It was his testimony that as at the time the 2nd respondent announced the presidential results, the
1st respondents online portal had not yet transmitted all the presidential results. These results were
being retrieved from the Form 34As received from the polling stations, which results had already been
transmitted to the constituency level. He explained that the contradiction in the data displayed was as
a result of Forms 34A, 34B and 34c that had not been transmitted to the online portal. He stated that
as at August 21, 2017, at approximately 8:14am (10 days after the general election), the transmission
rate was at 99.99% meaning that the reported valid votes of 15,180,381 at the portal did not include
valid votes from all the 40883 polling stations.
558. He further stated that the presidential results were based on Form 34C which form, did not contain
results from Nyando Constituency which is made up of 60,370 valid votes as captured in Nyando
Constituencys Form 34B, as such there is no signicant dierences in the number of valid votes
reported in Forms 34Bs and Form 34C.
559. While responding to the averment that there is evidence of turnout in excess of 100 per cent, Mr
Chirchir stated that no prison station had a voter turnout in excess of 100%. He noted that the
total number of registered voters in Moyale prison, Kitale Medium prison and Manyani Prison were
erroneously entered as rejected votes in the KIEMS kit. He also stated that the rejected votes as seen
in the 1st respondents online portal is due to erroneously keying in the value of the valid votes in the
rejected votes column of the KIEMS kit which explains why the rejected votes equals the valid votes.
In giving an explanation to the averments that the valid votes in dierent elective position in Igembe
Central Constituency Mr Chirchir stated that the gures are close to one another making them even
more reliable.
560. Mr Chirchir averred that the violence that was witnessed a few days after declaration was occasioned
by the demands by of the 1st and 2nd petitioners who sought to be declared the President and Deputy
President elect respectively even before collation of results in Form 34C on the basis that the petitioners
were in possession of what they termed actual results as contained in the 1st respondents servers. He
deposed that the situation was worsened by the Petitioners holding a press conference at Caramel
Restaurant in Nairobi at which the Petitioners urged their supporters not to accept the results that were
about to be announced and ominously to await further instructions. He observed that as the Kreigler
report noted, the use of such coded and/or ambiguous language in highly charged and polarised
political environment more often than not lead to violence.
561. My opinion is that this adavit fully rebutted the averments in the adavit of Mr Kegoro
notwithstanding that the burden of proof had not shifted to the respondent in respect of the
allegations made in the adavit and the fact that the adavit introduced new issues which were not
pleaded in the petititon.
18. Adavit of Brian Gichana Omwenga in reply to Koitamet Ole Kina

562. The deponent swore his adavit in the capacity of Technology Advisor employed by Jubilee Party. He
deposed that he is a software and systems engineer, holding a Masters Degree in Engineering Systems,
Technology and Policy from the Massachusetts Institute of Technology (MIT). He averred that Mr
Ole Kina erroneously stated that Form 34As were used to declare the presidential results, yet it is the
Forms 34B that forms the basis for declaring the presidential results. He deposed that in some cases, at
the time of electronically transmitting the results, the scanned image would either fail to load or delay
especially in areas lacking 3G or 4G network coverage.
563. He claried that such network challenges had been anticipated and the 1st respondent had issued a
prior communication to that eect. However, regardless of whether or not the electronic transmission
eectively worked, Form 34A would still be physically delivered at the Constituency tallying centre.
Accordingly, the Form 34As would then be used to tally the constituency votes and thereafter results
would be entered in Form 34B. The Form 34B would then be transmitted to the National Tallying
Centre, wherein the Commission would sum them up in a Form 34C which would then be the basis
for declaring the results. Consequently, he averred that it was not necessary to have in possession Form
34A during summation of the presidential results.
564. Accordingly, he deposed that the results transmitted on the television screens were only provisional
since the nal results were to be based on the constituency tally in Form 34B. This adavit controverts
all the allegations made in the adavit of Mr Koitamet Ole kina. Therefore the allegations that there
was deliberate non-compliance with constitutional principles cannot stand.
19. Adavit of Dr Karanja Kibicho sworn on August 24, 2017 in reply to the adavit of Dr
Nyangasi Oduwo
565. In his sworn adavit, Mr Kibicho averred that he is the Principal Secretary, Ministry of Interior &
Co-ordination of National Government. He swore his adavit in response to the averments made
concerning the payments made to the Internally Displaced Persons (IDP).
566. He stated that following the post-election violence in 2007, several persons were displaced from their
homes and thereafter the Government embarked on a settlement programme. Soon after, it was
realized that due to the complexity and the magnitude of the IDP problem, there was need to formulate
an appropriate legal framework to strengthen the Governments eort. He averred that, it was against
that background that Parliament enacted the Prevention, Protection and Assistance to Internally
Displaced Persons and Aected Communities Act, 2012.
567. He stated that the IDP Act established a National Consultative Coordination Committee
(Committee) which is tasked with the obligation to manage the IDP aairs on behalf of the
Government. In his sworn testimony, the deponent averred that in the 2016/2017 Development
Budget for the State Department of Interior, there was an allocation of kshs. 6 Billion. On the basis
of the said budgetary provision, the Committee prepared a detailed work plan which they submitted
to the Accounting Ocer for approval to enable them undertake the necessary processes towards
achieving the resettlement of the IDPs. The said funds were however reduced by the National Treasury
to Kshs. 2 Billion which was the amount disbursed to the Integrated IDPs across the 17 counties.
568. Mr Kibicho further averred that the said funds were disbursed through the beneciaries Bank accounts
and it is upon that background that the 3rd respondent witnessed the announcement regarding the said
disbursements being made in Kisii and Nyamira counties. Consequently, the deponent denied that the
3rd respondent made any payments to the IDPs as stated by the petitioners.
569. He further averred that as the Principal Secretary of Ministry of Interior & Coordination of National
Government, it is within his docket to oversee all eld National Government Administrative Ocers
that include Regional Commissioners, County Commissioners, Deputy County Commissioners
among others. In line with his scope of work, he averred that in the month of July, he received
information that some chiefs in Makueni County were unlawfully using their positions and
government motor cycles to campaign for the petitioners. In his sworn testimony, he provided the
names of the chiefs whom he avers that were implicated in the said allegation of misuse of oce.
570. He depose that, upon receipt of the said intelligence report on the conduct of the chiefs, he reported
the same to the 3rd respondent and it is against that background that the 3rd respondent made
the impugned remarks during a campaign rally at Makueni. According to him, the 3rd respondents
statement was meant to ensure that no Chief takes any political side or use public resource to campaign
for anyone.
571. I nd that this is a complete rebuttal of the allegation and the video transcripts adduced to prove that
the 3rd respondent had committed election oences and that the principles in Article 81 and 86 of the
Constitution were violated since the Cabinet Secretaries expended government funds in campaigning
for the 3rd respondent.
20. Adavit by Marykaren Kigen-Sorobit in response to Moses Wamuru

572. The deponent, Ms Kigen, averred that she is an advocate of over 20 years experience and is the Jubilee
Party, Deputy Chief Executive Ocer and Director of Legal aairs & Compliance. It was her averments
that it was her responsibility to oversee and supervise all party agents retained at various counties, sub-
counties, wards and polling stations. In addition to this, she trained the party agents on their expected
roles in consultations with the Chief Party Agents.
573. She stated that the 3rd respondent had agents deployed in all the polling stations across the country and
such agents were assigned their respective stations at each county, constituency and wards with a chief
agent to report to. She averred that the roles of the chief party agents includes _acting as the chief agent
for the 3rd respondent in their respective stations; mobilizing the 3rd respondents agents; monitoring
and advising the party agents on the progress of the elections; liaising with the 2nd respondents ocials
conducting the election and reporting any incidences likely to negatively aect the interests of the 3rd
respondent.
574. In her sworn testimony, Ms Kigen averred that, contrary to the position taken by the petitioners
witness, Mr Wamuru, there was a NASA agent at Gichera primary school, Thigingi primary school,
Karurumo primary school and Kiangongi primary school by the names of Josphat Nyaga, Martin
Thati Njeru, Eunice Muthoni Ndwiga and Eliud Gitari respectively.
575. Furthermore, she stated that Mr Wamuru has misled the Court as to the existence of polling stations
called Ngurweri primary school and Kiangongi primary school when in fact no such polling stations
exist. She also stated that there was no NASA agent called Donald Muchemi at the Nyangwa secondary
school which was the tallying centre for Mbeere South Constituency. In addition, she attached Form
34A of Gichera primary school which shows that, unlike what has been averred by Mr Wamuru, a
person by the name of Josphat Nyaga, being a NASA agent signed Form 34A belonging to that polling
station.
576. Further, she impugned the deposition by Mr Wamuru that as at 12.30 am, voting was still on-going at
Thigingi primary school. In doing so, she attached a copy of Form 34A and the transmission report for
that polling station which indicates that the transmission was done at 23.31 hours. She also stated that
the 3rd respondents agent, by the name of Martin Thati Njeru was present all through yet he signed
Form 34A without any reservations or adverse comments.
577. With regard to allegations that voting began at 2.00 pm at Karago primary school, the deponent averred
that she has sought information from the 3rd respondents agent at the polling station who stated that
voting begun at 8.00am. Ms Kigen, also questioned why the NASA agent, by the name of Juliet
Wamburu, who indeed signed the Form 34A, did not mention that there was delay in opening the
polling station.
578. With regard to allegations that NASA agents were kicked out of Karurumo youth polytechnic polling
centre, the deponent attached Form 34A which showed that a person by the name of Eunice Muthoni
Ndwiga, a NASA agent signed Form 34A without any reservations. She stated that even Kyeni Girls
secondary school polling station, NASA agents signed Form 34A hence they could not have been
kicked out as alleged. Further Ms Kigen stated that according to the information received from the 3rd
respondents agent deployed at New Farmers Hall polling station, there was no NASA agent present at
that polling station hence the allegations that the agents were threatened are untrue.
579. The deponents concluded by stating that no County Commissioner acted as the 3rd respondents agent
as alleged.
I wish to state that the allegations made in the adavit of Mr Moses Wamuru and the evidence adduce
in support of those claims did not shift the burden of proof to the respondents. More specically
the claim that the NASA agents were kicked out of the polling stations during the counting of the
votes and that the County Commissioner was the chief agent of Jubilee Party. No evidence was
adduced in support of this claim hence the respondents were under no evidentiary burden to disproof
the allegations since they had not been proven in the rst instance. Nonetheless, the adavit of Ms
Marykaren Kigen-Sorobit suciently counters those allegations.
21. Adavit by Marykaren Kigen- Sorobit in response to the adavit of Benson Wasonga
580. The deponent, Ms Kigen stated that no proof has been availed of the alleged anomalies with regard to
the declaration of the presidential results by the 2nd respondent, thus the averments contained in the
adavit of Benson Wasonga are unsubstantiated and do not raise any factual issues.
581. She asserted that the actual summation of the total valid votes under the portal is 15,180,381. Further,
that according to Form 34C, the 1st petitioners votes were 6,762,244 and the 3rd respondents votes
were 8,203,290 and hence the assertion that the 1st petitioners votes were 6,821,505 while the 3rd
respondent votes were 8,223,163 is false.
582. It was her assertion that the Form 34C, upon which the results were declared by the 2nd respondent
pursuant to the provisions of Regulation 87(3)(e) of Elections (General) Regulations, 2012 does not
include the results for Nyando constituency where the Petitioner had 60,715 votes against the 3rd
Respondents 214 votes. She stated that those votes would not have made any material dierence within
the contemplation of the proviso to Regulation 87(3). I nd that the issue as to the results of Nyando
constituency being left out in the declaration of the presidential election results is fully supported by
the proviso to Regulation 87 (3) of the Elections (General) Regulations, 2012. In the constituency the
petitioner had 60,715 votes while the 3rd respondent had 214 votes. The justication for the results
being declared without those from Nyando is that the results from the constituency could not have
materially aected the result.
22. Adavit by Marykaren Kigen - Sorobit in response to the adavit of Ibrahim Muhamud Ibrahim
583. In her sworn statement, Ms Kigen averred that the 1st respondent vide an email dated July 21, 2017,
forwarded to all Political Parties and Independent Candidates a list of presiding ocers for Mandera
North Constituency which indicates the presiding ocer at Guticha primary school as Isaak Alasow
Abdi.
584. She asserted that Guticha primary school has only one polling station and the registered number of
voters is 660. In that polling station the total number of valid votes cast were 581 representing a
percentage of 88% voter turnout. She compared the voter turnout at Kiatine primary school in Mbooni
Constituency, Makueni County wherein the registered number of voters was 2 and the voter turnout
was 100% same as Kwataruk Water Point polling station in Loima Constituency, Turkana County
where the registered number of voters was 5 and the number of valid votes was 5 which indicates 100%
voter turnout. Accordingly, she averred that it is not unusual to have record of 100% voters turnout.
585. In response to the averment that gures were lled in at the tallying centre which was done at the Sub
County Commissioners Block, against a court order which had directed that the tallying centre be
at Rhamu Arid Zone Primary School, she explained that the Decree attached was served in Mandera
North Constituency on August 3, 2017 which was a Thursday and four days to the elections hence,
the practicability of the execution of the Decree became impossible.
I nd that the this adavit controverted all the allegations contained in the adavit of Ibrahim
Muhamud Ibrahim.
23 Adavit by Marykaren Kigen-Sorobit in response to the adavit of Mohamed Noor Barre

586. In response to the averments made on Mr Barres adavit, Ms Kigen stated that the 1st respondent
vided an email dated 21st July, 2017 forwarded to all Political Parties and Independent Candidates a list
of all presiding ocers for Mandera North Constituency which indicated that the presiding ocer at
Kalicha Primary School was Mohamed Abass.
587. She averred that Kalicha Primary School has two polling station and the registered number of voters
at polling station 2 is 594; and the voter turnout was 100%. She avers that there is nothing unusual in
having a voter turn -out of 100%. I nd that the allegations of rigging and replacement of presiding
ocers with untrained ocers has not been proved at all. These were bare allegations in the adavit
of Mohamud Noor Barre in respect of which the petitioners did not discharge their burden of proof.
Nonetheless, the respondents adduced evidence to controvert those allegations which evidence I nd
was a complete rebuttal of the claims made in the said adavit.
24. Adavit by Andrew Wakahiu in response to the adavit of Dr Nyangasi Oduwo & Olga Karani
588. Andrew Wakahui, swore his adavit dated August 23, 2016, in his capacity as the Secretary of Delivery
and Head of the Presidential Delivery Unit (PDU) which is a functional oce in the Executive Oce
of the President.
589. He averred that the 3rd respondent did not violate the provision of Section 14 of the Election Offences
Act by sponsoring or causing sponsorship of advertisement in printed electronic media, business
and billboards of the government achievements during the election period. He stated that the work
of the Presidential Delivery Unit is to enhance the accountability of a government to its citizens
through making information relating to ongoing projects available. He went on to explain the roles
and function of the PDU which includes accountability.
590. He deposed further, that the web portal is one of the tools the PDU uses to enhance accountability
as it is the easiest ways of making information on government projects available. According to his
averments, it was necessary to sensitize Kenyans on its existence by way of inter alia advertisements
through the electronic and print media.
591. It was his deposition that this was necessitated by the numerous eorts by the general public inquiring
information from the various state departments of the Government of Kenya especially on all ongoing
projects undertaken from April, 2013 onwards and especially after the launch of the Jubilee Coalition
and shared manifesto which outlined the coalition's vision, pledges and agenda from 2013 to 2017.
592. Mr Wakahui stated that the purpose of setting up the president's delivery unit and specically the
delivery portal was to ensure that the members of the general public are informed and are able to
track projects undertaken by the government and which is an obligation under Article 35 and Article
201 of the Constitution which requires that there be openness, accountability and public participation
in nancial matters. Further that since the web portal was set up there have been over 6 million
impressions (visits) which shows it is a very useful tool for monitoring government projects and the
feedback from the members of the public.
593. In addition he stated that there is pending litigation before the High Court which seeks to determine
inter alia the constitutionality of Section 14 of the Elections Act. The cases are Constitutional Petition
162 of 2017 Apollo Mboya vs Attorney General and 3 others and Constitutional Petition 182 of 2017
Jack Munialo & 12 others -vs- Attorney General. Moreover, there was a bill which was introduced to
the National Assembly seeking to repeal Section 14 of the Election Offences Act in order to ensure that
it conrms to Article 35 of the Constitution, unfortunately the National Assembly was adjourned sine
die before the bill was passed.
594. This adavit oered a full explanation as to the functions of the Presidents Delivery Unit which was
set up to ensure that the members of the general public are informed and are able to track projects
undertaken by the government and which is an obligation under Article 35 and Article 201 of the
Constitution. I nd that this fully rebuts the imputations of electoral oences on the part of the 3rd
respondent.
595. On the issue of the pending Constitutional matters pending in other Court it is imperative to note that
this Court will respect the hierarchy of Courts and will not usurp the jurisdiction reposed in another
Court. This Court will allow other Court below it to exercise their jurisdiction in accordance with the
law and will allow a matter to come before it in the ordinary course of appeal. In Re the Matter of the
Interim Independent Electoral Commission, Sup. Ct. Civil Application No 2 of 2011 this Court held
[paragraph 45]:
In this instance similar questions, entailing constitutional interpretation, have been brought
simultaneously before the High Court and the Supreme Court; and, as already noted, such a
move by parties is apt to precipitate contretemps in resolving the question of jurisdiction. In
principle, the Supreme Court commits itself to order and ecacy in the administration of
justice, and to that end it may require that the process of litigation commenced in the High
Court, and entailing constitutional interpretation, be exhausted and, if need be, followed
by appellate procedures. In such circumstances, this Court will be cautious in considering a
request for an opinion, to ensure the two jurisdictions do not come into conict; and each
case will be carefully considered on its merits.
Similarly with respect to allowing other Courts to exercise their jurisdiction, this court held, in Peter
Ngoge v Hon Ole Kaparo that [paragraph 30]:
In the interpretation of any law touching on the Supreme Courts appellate jurisdiction, the
guiding principle is to be that the chain of Courts in the constitutional set-up, running up to
the Court of Appeal, have the professional competence, and proper safety designs, to resolve
all matters turning on the technical complexity of the law; and only cardinal issues of law or
of jurisprudential moment, will deserve the further input of the Supreme Court.
It is my considered view that this Court should not delve into any matter pending before
another Court; instead this Court will give room to the High Court to hear and determine
any matter or matters pending before it including that relating to the constitutionality of
any provisions in the Election Oences Act.
25. Winifred Waceke Guchu Adavit sworn on August 24, 2017, in Reply to Dr Nyangasi Oduwo
596. The deponent, Ms Guchu averred that she is the Executive Director of Jubilee Party and was the
Deputy Chief Presidential Agent for the 3rd respondent during general elections held on August 8,
2017.
597. She averred that the dierence of 1,441, 066/- between the votes cast in favour of the 3rd respondent and
the 1st petitioner was very signicant and demonstrated the resolve of the people of Kenya to exercise
their free and sovereign will. In addition, the Jubilee Party had won a majority of positions in the
other ve elections of Governor, Senate, National Assembly, Women Representative and Members of
County Assembly conducted on the same day.
598. Ms Guchu averred that, the petitioners wrote a letter to the 1st respondent on August 10, 2017,
claiming to have in their possession presidential results which were dierent from the results being
displayed in the IEBC portal at the time. Before the issuance of the said letter, Ms Guchu averred that
the petitioners had made widely publicized claims stating that the results transmission system of the
2nd respondent had been hacked.
599. It was therefore, surprising that the petitioners had now abandoned that argument in favour of other
averments which according to her, were never an issue when the results were being tallied, collated
and veried. She further stated that she was aware of the 1st petitioners attempt to coerce candidates
nominated by NASA aliate parties to reject their positions in order to strengthen the petitioners
position.
600. Ms Guchu further averred that the Constitution does not impose any duty on the 1st respondent to
exclusively use electronic systems to transmit the results. She deponed that the only mandate imposed
on the 1st respondent was to ensure that the system used is simple, accurate, veriable, accountable
and transparent. It was her testimony that Section 44A of the Elections Act grants the 1st respondent
a statutory discretion to use a complementary mechanism where technology either fails or is unable
to meet the constitutional threshold of a free and fair election. She further deposed that the Streamed
results were not the basis on which the winner of the election was declared. She swore that there was no
legal requirement obliging the 1st Respondent to avail Form 34A to any of the presidential candidates
for verication.
601. Ms Guchu asserted that upon the conclusion of voting, the counting exercise commenced in the
presence of all agents present, observers, police ocers and all other authorized persons. She averred
that according to ELOG, an observer group which deployed one of the largest observer delegates,
the petitioners had very good representation of agents and even where the agents failed to sign
the prescribed forms, such failure does not of itself invalidate the results as provided for under
Regulations 62(3) and 79(6) of the Elections (General) Regulations, 2012. Furthermore, in accordance
with Regulation 79(2)(A)(a), a copy of Form 34A was axed at the polling station.
602. She averred that once the process of counting at the polling station was concluded, the results were
simultaneously sent electronically to the constituency tallying centre and the national tallying centre.
She deposed that those were the results that were thereafter Streamed into the public portal at the
Bomas of Kenya.
603. It was her testimony that since the 1st respondent did not own telecommunication network facilities, it
relied on duly licensed service providers to provide the service. She deposed that by virtue of Regulation
20 of the Elections (Technology) Regulations, 2017, the said service providers are under an obligation
to provide and deliver services as may be requested by the 1st respondent. She averred that the 1st
respondent in consultation with the service providers, was required by virtue of Regulation 21 of
the Technology Regulations, to identify and communicate, in a timely manner, to all stakeholders
about the network service available at dierent polling stations and in areas where there was no
telecommunication network. Aware of such complexities, MsGuchu avers that Parliament introduced
Section 44A in order to provide a complementary mechanism for the identication of voters and
transmission of results.
604. It was her testimony that the petitioners, through their umbrella political movement had written
a letter to the 1st respondent enquiring on how the IEBC intended to implement Section 44A of
the Elections Act. In response, by a letter dated 28th February, 2017, the 2nd respondent informed
the Petitioners that the complementary system envisaged under Section 44A of the Elections Act
would be eected through inter alia an amendment to Regulation 69 of the draft Elections (General)
Regulations that the 1st respondent was developing in consultation with stakeholders including
NASA.
605. She indicated that following the Court of Appeal decision in the Maina Kiai case, it was conrmed
that Regulation 83 would be the complementary system applicable in respect of transmission of results
in the event that the technology failed. Such complementary mechanism would be eected through the
physical delivery of Form 34As from the polling stations to the returning ocers at the constituency
tallying centre while constituency returning ocers would deliver Forms 34B to the National Tallying
Centre in Nairobi
606. She further averred that on August 6, 2017, the 1st respondent, by virtue of Regulation 21 of the
Technology Regulationspublished a list of approximately 11,000 polling stations that lacked 3G
network coverage. Consequently, the electronic transmission of results would be generally poor in
those stations.
607. Regarding the irregularities set out in Dr Nyangasis adavit, Ms Guchu responded that in an
overwhelming number of cases cited therein, the evidence produced did not reveal the said irregularities
as alleged. In particular she deposed that neither the Elections Act nor the Election (General) Regulations
require that Form 34A bears the 1st respondents stamp. Further, the failure of an agent to sign the
Forms or attend his/her duties at the counting hall did not invalidate the results.
608. In addition, she averred that Dr Nyangasi had made an expert‘ opinion on handwriting even though
he is not a forensic document examiner. She referred to Section 50 of the Evidence Act which provides
circumstances under which the court can admit an opinion about a persons handwriting. She deposed
that Dr Nyangasis opinion is of no probative value for lack of legal basis.
609. In response to allegations on discrepancies of returns in forms 34A and 34Bs, Ms Guchu stated that
there were no signicant discrepancies between Form 34A and Form 34B. She has produced a report,
marked as Exhibit WG 13, which demonstrated that after reconciling the discrepancies in the Forms
attached to Dr Nyangasis adavit, the net eect is that the petitioners tally improves by 595 votes while
that of the 3rd respondent decreases by 1199 votes. She observed that it is incomprehensible for the
petitioners to allege that the IEBC systems had been hacked and at the same time persist the argument
that electronic transmission of results was the only acceptable mode of transmitting results.
610. She further deposed that contrary to Dr Nyangasis assertions, an analysis of all the 290 Form 34Bs
reveals that NASA agents signed the vast majority of the said ForMs In addition, she stated that
an overwhelming majority of the allegations set out in Dr Nyangasis adavit are false, erroneous,
predicated on ctitious documents and that he lacks competence to give an opinion on some of the
claiMs
611. Ms Guchu acknowledged that according to Form 34C downloaded from the 1st respondents website,
the rejected votes were 81,685 while the public portal on which the electronic results were posted
showed that the rejected votes were 403,495.She explained that, she undertook an analysis which
revealed that in 688 polling stations accounting for 229,869 out of 294,271 registered voters, the
number of reported rejected votes was equal to the number of registered voters in those aected polling
stations.
612. According to the MsGuchu, the presiding ocers in the aected stations inserted the registered
number of voters in the eld reserved for rejected voters in the KIEMS kits since the slot for registered
voters was already pre-lled. She averred that such an error or mistake was quite easy to make since in
the physical Form 34A, the number of registered voters in a polling station was the rst slot that an
electoral ocer lls. She deposed that this explained the discrepancy between the number of rejected
votes displayed in the portal and the ones indicated in Form 34C. It was her testimony that in any case,
since the ocial results were declared on the basis of the 290 Form 34B which had been compiled from
the physical Form 34A, the said transmission error did not occur
613. In response to the allegation of failure to include results of Nyando Constituency in the nal tally, Ms
Guchu averred that such failure was not fatal for the reason that even if the results declared did not
include the results from Nyando constituency wherein the 1st petitioner had 60,715 votes as compared
to the 3rd respondent who had 214 votes, under Regulation 87 of the General Regulations, the 2nd
respondent can declare results of the presidential election, where in the opinion of the Commission
the results that have not yet been received would not make a dierence in the nal results.
614. Responding to the alleged disparity between presidential votes and results of the other elective posts,
Ms Guchu attaches an analysis of results from 94 constituencies showing that that votes cast in one or
more of the other 5 elections, were more than the votes cast for the presidential candidates. She denied
the allegation that the Streamed results showed a static 11% margin between the 1st petitioner and the
3rd respondent, noting that the gap in percentage between votes cast with respect to the petitioner and
the 3rd respondent kept on shifting throughout.
615. On the allegation of undue inuence and intimidation, she states that there is no provision in the
Constitution that requires ongoing government programs to be suspended during the election period.
Furthermore, Article 35 guarantees the right to information hence in openness and transparency such
information was made available to the members of public, through the various available channels.
In addition, she stated that there are two pending cases in the High Court namely; Apollo Mboya v
Attorney General & 3 Others Petition No 162 of 2017 and Jack Munialo & 12 Others v Attorney
General, Petition 182 of 2017 which challenges the constitutionality of Section 14 of the Election
Oences Act which prohibits advertisements on government achievements during the election period.
She deposed that a Bill had been introduced in the National Assembly with a view to repealing this
provision to ensure conformity with Article 35 of the Constitution.
616. In conclusion, she averred that the petitioners had consistently undermined the electoral process by
way of their public utterances in various foruMs Specically, she deponed that the 1st petitioner stated
that the 3rd respondent is a 'computer generated leader and that it does not matter who won the
election. She further states that the petitioners had, by their conduct and actions, shown their resolve
to compromise the fair adjudication of this petition.
617. I do not hesitate to nd that this adavit oers a complete rebuttal to the allegations made in the
adavit of Dr Nyangasi which now stands controverted.
26. Winifred Waceke Guchu Adavit sworn on August 24, 2017, in Reply to Olga Karani
618. The deponent stated that the averments made by Ms Karani in her Adavit were of such generalized
nature that it is impossible to respond to them with any specicity. She averred that the IEBC
Commissioners referred to were not identied and neither were the presiding ocers named nor their
polling stations identied. She swore that Ms Karani did not specify occurrences and events that
allegedly happened in Migori, Homabay and Kisumu County. Moreover, she did not state the names
of persons missing from the voters register. Further, she disputed Ms Karanis testimony that as at 10th
August, 2017, very few Form 34As were available. On the contrary, the deponent stated that as at
midnight of 9th August, 2017, the information availed to political parties through IEBC Application
Program Interface showed that 39,426 Forms 34As results had been received.
619. Ms Guchu concluded by testifying that she was not aware of any law that requires presidential agents
to be given any roles at the National Tallying Centre.
This adavit rebutted the adavit evidence of Olga Karani with the eect that the claim that the
petitioners were not given the Forms 34A.
27. Adavit of Brian Gichana Omwenga in reply to the adavit sworn by Apprielle Oichoe
620. The deponent, Mr Omwenga, in his adavit sworn on August 24, 2017, averred that the opinion of
Ms Oichoe on how the IEBCs system should have been, is purely subjective and lacked scientic basis.
He stated that Ms Oichoe made generalized allegations without producing any evidence to support her
assertions failed to show how, when and by whom the IEBC website was compromised as alleged. He
deposed that she also failed to support with any evidence the assertion that non-authenticated and non-
prescribed results through use of unknown form and format found their way into the IEBC portal.
621. On the questions raised on the voters register, Mr Omwenga testied that the IEBC complied with
the Elections Act and the Elections (Registration of Voters) Regulations, 2012. With regard to allegations
of non-availability of the register, Mr Omwenga responded that the IEBC issued a press statement on
May 18, 2017, urging all Kenyans to inspect the voters register and conrm their biometric details.
622. It was his deposition that on June 9, 2017, 60 days before the general elections, the IEBC informed
the public that it would be revising the register as guided by the ndings of the verication exercise.
Further that on this date, the IEBC also issued a media releasing on the audit report on the register of
voters. Subsequently, the IEBC established a portal on their website which enabled voters to access and
inspect the voters register at their convenience He added that the 1st respondent posted into the portal
further information including an audit report, the 2017 register of voters which included statistics per
polling station, statistics per county assembly ward, statistics per constituency, diaspora statistics and
prison statistics and informed members of the public to verify their registration details online or by
sending an SMS to 70000 with their Identity Card Number or Passport number.
623. Mr Omwenga questioned the authenticity of the averments made by Ms Oichoe to the eect that
voters at Upper Hill Primary polling station were turned away since their names were missing from
the register. It was his testimony that Ms Oichoe has no capacity to make such an averment because
she was neither the allegedly aected voter nor the presiding ocer and hence the veracity of the said
allegation cannot be validated.
624. He deposed that if indeed she was an observer in that station, she ought to have been accredited by
the 1st respondent in accordance with Regulations 62 and 94 of the Elections (General) Regulations,
2012. Furthermore, the particulars of the voters allegedly aected were not provided by Ms Oichoe.
The deponent further states that Regulation 69 of the Elections (General) Regulations stipulates how
the complementary mechanism should be applied in instances where the electronic voter identication
device fails to identify a voter.
625. Responding to the assertion that results were transmitted by use of a document that was not prescribed
by law, Mr Omwenga stated that under Regulation 82, Elections (General) Regulations, 2012 the
Commission may direct any other manner in which the results could be transmitted. Relying on
Section 72 of the Interpretation and General Provision Act, Cap 2 Laws of Kenya, which provides,
"…whenever a form is prescribed by a written law, an instrument or document which

purports to be in that form shall not be void by reason of a deviation therefrom which
does not aect the substance of the instrument or document, or which is not calculated
to mislead. he averred that the Commission was free to prescribe any other Form through
which the results could be transmitted."
626. Mr Omwenga further stated that there is no legal requirement obliging the 1st respondent to avail Form
34A to any of the presidential candidates for verication and that the role of the 2nd respondent at
the National Tallying Centre was limited to collating the results recorded in the 290 Form 34Bs and in
the terms proscribed by the Court of Appeal decision in the Maina Kiai case He also pointed out that
Ms Oichoi had relied on a non-existent Section 44B of the Elections Act. The deponent also attached
as evidence, a certicate of extraction of the video transcripts attached to Davis Chirchirs adavit
pursuant to Section 106(4)(B) of the Evidence Act.
It is clear that there are no express statutory requirements imposing an obligation on the 1st respondent
to avail the Forms 34A and 34B to the respondents. Therefore it cannot be a basis for making a claim
of non-compliance with the constitutional principles or written law.
28. Adavit by Davis Kimutai Chirchir in response to the 2nd adavit of Godfrey Osotsi
627. Mr Davis Kimutai Chirchir, in his adavit dated August 24, 2017 swore this adavit in his capacity as
the 3rd respondents chief agent in response to and in opposition of the supporting adavit of Godfrey
Osotsi.
628. It was his sworn statement that the adavit of Mr Osotsi was exaggerated, peddled with outright
falsehoods and has suppressed material facts in a bid to mislead this Court. He deposed that the
process of voting, collating, tallying and declaration of results was conducted in full and or substantial
compliance with the provisions of the Constitution and all electoral laws. Further that the presidential
results announced by the 2nd respondent on August 11, 2017 were accurate, veriable and in
accordance with the standards established by law.
629. He emphasised that the results were announced in a transparent and lawful manner as contemplated
by Article 86 of the Constitution and the Elections (General) Regulations, 2012. In support of his
averments he made reference to reports by local and international observers accredited by the 1st
respondent terming the election as being substantially free, fair and credible.
630. In addition, he deposed that the collation of results to Form 34C and the announcement of the
presidential results were done after all Forms 34B, with the exception of Nyando Constituency, had
been electronically transmitted to the National Tallying Centre. He deponed that the results for
Nyando Constituency which had not been collated at the time of declaration did not aect the
outcome of the results. He testied that the petitioners have a culture of disputing an election outcome
whenever they lose. He further denied that the IEBC failed to produce election materials in the 2013
presidential election petition, adding that the court had held that the petitioners then had not laid basis
for the demand.
631. He averred that the issue of transmission of results was conclusively settled by the High Court in the
Nasa case and later armed by the Court of Appeal in Civil Appeal No258 of 2017 where the Court
held that the 1st respondent had put in place a complimentary mechanism in terms of Section 44A of
the Elections Act 2011 and that it had, with public participation, set up regulations to operationalize
section 44A. He testied that any failure of technological devices should not invalidate the results.
632. Responding to the allegation that the security of the integrated electoral management system
(KIEMS) was compromised, Mr Chirchir deposed that many allegations contained in the petition and
supporting adavits were unsubstantiated since no transcripts of the alleged video clips nor the MS
Excel data has been provided.
633. Mr Chirchir deposed that the 1st respondent had full control of its system at all times and that there was
no evidence of it having ceded its authority to third parties. It is therefore not true that the transmission
of results from 11,000 polling stations was jeopardized as none of the petitioners agents challenged the
contents of Forms 34A from these polling stations. Further, he stated that it was not accurate to state
that 11,000 polling stations would represent 7, 700,000 voters since the number of registered voters
per polling stations varied from 1 voter per polling station to a maximum of 700 voters per station.
634. He denied that the results continued Streaming in a constant percentage of 54% and 44% for the 3rd
respondent and the 1st respondent respectively with a constant dierence of 11% in favour of the 3rd
respondent. According to Mr Chirchir, the dierence between the petitioner and the 3rd respondent
oscillated between 27.06% and 9.22% in favour of the 3rd respondent. He explained that as accumulative
results retain high gures, it requires a high number to dilute its percentage i.e. if 700 represent 50%,
an addition of another 700 to it, will increase the percentage by 16.7% making it 66.7%. However, if
3,000,000 represent 54% an addition of 700 to it, will increase the percentage by 0.00580066% making
it 54.00580066%. It would therefore require a change of 130,000 in that number and no change at all
in the corresponding number to attain a 1% increase.
635. Mr Chirchir concluded by stating that this Court should protect the constitutional democracy and
nd that the 3rd respondent was duly elected in a free, fair, credible and valid election conducted on
8th August 2017.
636. The petitioner failed to prove that the percentages between the votes garnered by the petitioners and
those of the 3rd respondents had a constant dierence of 11%. This Court held in Raila 2013 that for
data-specic allegations the standard of proof is beyond reasonable doubt. This the petitioner was
unable to discharge hence there burden did not shift to the respondents. That notwithstanding the
all the respondents have adduced evidence in rebuttal showing an analysis of the various diences in
percentages at various intervals from the time the results started Streaming into the National Tallying
Centre to the time of declaration of results indicating that the dierence kept varying.
637. Consequently, I nd that the petitioner in most of the allegations made did not discharge the onus of
proof on them. In that regard the burden did not shift to the respondent to counter the allegations since
they bore reinforcement by cogent evidence. In the instances in which the petitioners did discharge the
burden, the respondents suciently supplied cogent evidence in rebuttal. On the other hand where
the respondents admitted the allegations such as those of administrative errors credible evidence was
supplied to prove that the said errors did not materially aect the results and they were not in favour
of any particular candidate.
J. Orders on Access to Information

638. By a Ruling delivered on August 28, 2017, this Court considered a Notice of Motion Application
dated August 25, 2017 seeking the following Orders:
1. This application be certied as extremely urgent, heard and orders given before the hearing of
the substantive Petition.
2. The application be heard and determined expeditiously and in priority to the petition but in
any event before August 25, 2017.
3. This honourable court be pleased to order the 1st Respondent to give access to the petitioner/
applicant to the following:
a. Direct, unfettered access to relevant persons and systems at Safran in order for the
forensic information technology experts to fully understand the KIEMS system.
b. Full and unfettered physical and remote access to each biometric electronic
appliance used at each voting/polling station location used to verify voters IP
voters identication against the list of registered voters and for the appliances to be
forensically imaged to capture, inter alia, metadata such as data les, creation ties and
dates, device IDs MAC addresses, IP.
c. Addresses, geographic and local communications mast information.
d. Full and unfettered physical and remote access to any local server(s) connected to the
electronic device(s) used to verify voters identication against the list of registered
voters at each polling station, from which a forensic image will be taken.
e. Electronic device(s) used to capture Form 34As and Form 34Bs onto the KIEMS
system and transmitted to a) the CTNs and b) the NTC.
f. Full and unfettered access to any form of scanning device which saved images onto
access to any form of scanning device which saved images onto a access local server(s)
for onward transmission.
g. Access to any scanning device which would serve to establish whether the Form 34A
was captured, stored and forwarded in the expected timeframes.
h. Full and unfettered physical and remote access to any server(s) at the CTNs for storing
and transmitting voting information.
i. Full and unfettered physical and remote access to any servers at the NTC for storing
and transmitting voting information.
j. Addresses, source and destination IP Addresses, server details and user details.
k. Full and unfettered to access to all source codes, including all programming codes,
pursuant to The Election Regulation Technology, 2017,
4. This honourable court be pleased to order the 1st Respondent to give access to all Parties, the
following information and data that is in the exclusive possession;
a. The IEBC Election Technology System Network Architecture for the period of 30
days before the elections to the date of the Order of this Court comprising but not
limited to:
i. All the servers used during the Elections;
ii. number of servers;
iii. location of servers;
iv rewalls;
v IP addresses;
vi. Operating systems;
vii. Software running applications
b. The IEBC Election Technology System Redundancy Plan comprising but not limited
to:
i. Password policy;
ii. Password matrix;
iii. Owners of system administration password(s)
iv System users and levels of access
c. The IEBC Election Technology System Redundancy Plan comprising:
i. Business continuity plan
ii. Disaster recovery plan.
d. Certied copies of certicates of Penetration Tests conducted on the IEBC Election

Technology System prior to and during the 2017 General and Presidential Election
including:
i. Certied copies of all reports prepared pursuant to Regulation 10 of the

Elections (Technology) Regulations, 2017; and
ii. Certied copies of certicate(s) by a professional(s) prepared pursuant to

Regulation Presidential Petition No1 of 2017 -7- 10(2) of the Elections
(Technology) Regulations, 2017.
e. In relation to KIEMS Kits:
i. Import testing certication in relation to all KIEMS Kits;
ii. Static IP addresses of each KIEMS Kit used during the Presidential Election;
iii. Specic GPRS location of each KIEMS Kit used during the Presidential
Election for the period between and including 05th August 2017 and 11th
August 2017;
iv Certied list of all KIEMS Kits procured but not used and/or deployed during
the Election;
v Polling station allocation for each KIEMS Kit used during the Presidential
Election;
vi. Audit log of what each KIEMS Kit used during the Presidential Election
transmitted from Polling Stations to Constituency Tallying Centres and
to IEBC National Tallying Centre; and from IEBC Result Transmission
Database to Media Houses Application Protocol Interface (API)(logs of media
data update). Log must also show:
aa. Time of transmission from KIEMS Kit to the IEBC Result

Transmission Database; and
bb. Time of transmission from IEBC Result Transmission Database to the

Media Houses API;
cc. Count of Identied Voters by each KIEMS Kit;
dd. Soft copy of Ids captured in each KIEMS Kit;
ee. Audit log of transmission of scanned Forms 34A from each of

the KIEMS Kits.
f. Technical Partnership Agreement(s) for the IEBC Election Technology System

including but not limited to:
i. List of the technical partners;
ii. Kind of access they had;
iii. List APIs for exchange of data with the partners.
g. Log in for the period of 30 days before the elections to the date of the order of this
court of trails of showing the trail of users and equipments into all the IEBC Servers.
h. Log in for the period of 30 days before the elections to the date of the order of this
court of trails of users and trails of users and equipments into the KIEMS Database
Management SysteMs
i. Administrative access log into the IEBC public portal between 5th August 2017 to
date.
5. The 1st Respondent be compelled to give access to and supply to the court and to the
Petitioners for scrutiny, certied photocopies of the original Forms 34As 34Bs and 34Cs
prepared at and obtained from the polling stations by Presiding Ocers and used to generate
the nal tally of the Presidential election, and pursuant to such production leave be granted for
the use of an aid or reading device to assist in distinguishing the fake forms from the genuine
ones.
6. The 1st Respondent be compelled to give the Petitioners access Form 34As 34Bs and 34 Cs
from all 40,800 polling stations.
7. This honourable court be pleased to grant leave to the Petitioner/Applicants to:
(a) Rely on and or le further adavits in support of the petition and or the adavits of
(i)Rt. Hon Raila Amolo Odinga, Omar Yusuf Mohamed, (ii)Omar Yusuf Mohamed,
(iii) Dr Edga Ouko Otumbo, Nyangusi Oduwo and (iv) Norman Magaya dated
24/8/2017 be admitted on record and or be deemed to have been properly led.
(b) File such other adavits in response to or reply to any responses led by the
respondents
8. This Honourable Court be pleased to grant any other reliefs that become just and t to grant.
639. The anchor of the Application was that the electronic system of transmission had been deliberately
compromised in a manner not intended by law so as to interfere with and aect the result of the
Presidential election. It was also contended that the election results from individual polling stations
were not veriable. Further, that 395,510 rejected/spoilt votes were unaccounted for and that the
KIEMS system was designed to only transmit the results if the data entered was accompanied by
an image of the prescribed form. This allegation was satisfactorily controverted by the 1st and 2nd
Respondents who explained that because of the size of the image, in certain polling stations out of 3G
or 4G network range, the data was sent before the image of the prescribed Form could also be sent.
640. In the analysis the Court summarized the prayers sought by the Petitioner in the Application in the
following three limbs:
i. Access to information relating to the hardware and software used in the conduct of the
Presidential Election and particularly, transmission of results;
ii. Access to and scrutiny of certied copied of Forms 34A, 34B and 34C
iii. Leave to le further Adavits.
641. Regarding prayer (ii), having set out the law and jurisprudence regarding scrutiny, the Court
determined that the Petitioners had signaled their intention to seek scrutiny of (a) all rejected and spoilt
votes (sic), the returns of the Presidential Election Results including but not limited to Forms 34A,
34B and 34C and the KIEMS kit, the servers and website/portal.
642. The 1st and 2nd Respondent, in response, particularly registered their concern regarding the
practicality of some of the Orders being sought, such as access to the KIEMS kits, the security of the
system of transmission and the necessity to set up appropriate back up mechanism in case the Orders
were granted, which process, they stated would take upto at least 3 weeks.
643. The Court was cognizant of the security system concerns raised by the 1st and 2nd Respondents,
particularly, the absolute condentiality of passwords and usernames, locations of servers, identity of
password holders, IP addresses and software running applications, among others. Therefore none of
the requests relating to these specics were granted.
644. The Court disallowed prayer 3(a) in which the Petitioners were seeking direct, unfettered access to
relevant persons and systems at Safran, being cognizant of the jurisdictional diculties of granting
access to an entity based in France that was also not party to these proceedings.
645. Having evaluated the evidence and analysed the arguments by counsel, the Court made the following
orders, distinct and modied from the prayers originally sought by the Petitioners in the Application:
[72] Having so held, the nal Orders we make are that the Petitioners as well as the 3rd Respondent
shall be granted a read only access, which includes copying (if necessary) to –
a. Information relating to the number of servers in the exclusive possession of the 1st
Respondent.
b. Firewalls without disclosure of the software version.
c. Operating systems without releasing the software version.
d. Password policy.
e. Password matrix.
f. System user types and levels of access.
g. The IEBC Election Technology System Redundancy Plan comprising of its business
continuity plan and disaster recovery plan.
h. Certied copies of certicates of Penetration Tests conducted on the IEBC Election

Technology System prior to and during the 2017 General and Presidential Election
including:
(i) Certied copies of all reports prepared pursuant to Regulation 10 of the

Elections (Technology) Regulations , 2017; and
(ii) Certied copies of certicate(s) by a professional(s) prepared pursuant to

Regulation 10(2) of the Elections (Technology) Regulations, 2017
i. Specic GPRS location of each KIEMS Kit used during the Presidential Election for
the period between and including 5th August, 2017 and 11th August, 2017
j. Certied list of all KIEMS Kits procured but not used and/or deployed during the
Election;
k. Polling station allocation for each KIEMS Kit used during the Presidential Election;
l. Technical Partnership Agreement(s) for the IEBC Election Technology System

including but not limited to:
a. List of the technical partners;
b. Kind of access they had; and
c. List of APIs for exchange of data with the partners
m. Log in trail of users and equipments into the IEBC Servers.
n. Log in trails of users and equipments into the KIEMS Database Management SysteMs
o. Administrative access log into the IEBC public portal between 5th August 2017 to
date.
p. The information listed in (m), (n) and (o) above shall be issued in soft copy to the
petitioners and 3rd respondent.
q. Certied photocopies of the original Forms 34As 34Bs and 34Cs prepared at and
obtained from the polling stations by Presiding Ocers and used to generate the nal
tally of the Presidential election, and pursuant to such production leave be granted for
the use of an aid or reading device to assist in distinguishing the fake forms from the
genuine ones.
r. Forms 34A 34B and 34 C from all 40,800 polling stations.
s. Scanned and transmitted copies of all Forms 34A and 34B.
(73) Consequent upon the said Orders, we hereby make the following further Orders:
i. The Registrar of this court assisted by a number of judicial ocers and sta as she may
determine shall supervise access to the certied copies of original Forms 34A and Forms
34B by the petitioners and 3rd Respondents at such a venue as she shall determine in
consultation with the parties. A report on that exercise and related issues shall be led
by the Registrar by Tuesday, 29th August 2017 at 5.00 pm. and parties are at liberty
to submit on it at the end of the hearing.
ii. In the exercise set out in (a) – (p) above, priority shall be given to the;
1. 292 Polling stations as deponed to at paragraph 12 of Norman Magaya

Adavit sworn on 23rd of August 2017;
2. 688 polling stations as deponed to at paragraph 15 of Omar Yusuf Mohammed

adavit sworn on 24th August 2017;
3. 14,078 polling stations as deponed at paragraph 70 of Dr Nyangasi Oduwos

adavit dated 18th August 2017
iii. An ICT ocer designated by this court from among its ICT sta and two independent
IT experts appointed by the court shall supervise access to the technology in paragraph
72 above at such a venue as they may determine in consultation with the parties. A
report on that exercise and related issues shall be led by the said ocer and experts
by 5.00 pm. on Tuesday, 29th August 2017 and parties are at liberty to submit on it
at the end of the hearing.
iv. The parties to the petition are entitled to have a maximum of two agents/experts in
each of the exercises above. The agents shall at all times comply with the directions
of the Registrar and the ICT ocer to ensure expeditious conclusion of the above
exercise.
v. There shall be no order as to costs.
vi. It is so ordered.
646. The Court then set the parameters for the exercise and mandated the Registrar to supervise access to the
certied copies of the Original Forms 34A and Forms 34B by the Petitioners and 3rd Respondent and
due to the constraints of time, to le a Report on that exercise by Tuesday August 29, 2017 at 5.00pm.
In addition, an ICT ocer designated by the Court from among its ICT Ocers and two independent
IT experts appointed by the Court were tasked to supervise access to Orders on Technology and to
le a report on that exercise at the same time as the Registrar. Each party to the Petition was allowed a
maximum of two agents in each of the Forms and ICT exercises.
Submissions by the Parties
647. At the end of this exercise, the parties were each allowed to submit on the reports led by the ICT
experts and the Registrar.
648. Counsel for the Petitioner, Mr Orengo referred the Court to paragraph 13 of the Report where the
number of Forms 34A, 34B and 34C availed by the 1st Respondent had been indicated. One (1) Form
34C, 292 Forms 34B and 41,451 Forms 34A. Counsel pointed out some of the remarks that had been
made by the Registrar on the process:
(a) Forms 34A for Mandera West were not among the forms submitted
(b) There were illegible Forms
(c) Certain Forms 34A appeared to have been duplicates
(d) Certain Forms 34A and 34B appeared to have been carbon copies
(e) Certain Forms 34A and 34B appeared to have been photocopies
(f) Some of the Forms were neither stamped nor signed.
649. Counsel took issue with Forms that did not bear any security features or serialization. Counsel also
cautioned that certain Forms 34B were neither signed by the Returning Ocer nor by the Agents,
56 Forms did not have a watermark and 31 Forms did not have serial numbers, 32 Forms were not
signed by the Agents and 189 where the handover notes had not been lled. Counsel also expressed
dissatisfaction with non-compliance with a segment of the Orders of the Court on ICT access. He also
contended that most of the Forms were not in the standardized format.
650. Mr Muite, Counsel for the 1st Respondent commenced by urging the Court to compare the contents
of the Registrars Report using the Forms that were deposited in Court pursuant to Section 12
of the Supreme Court Act. Counsel also urged that contrary to the allegations by counsel for the
Petitioners, the statutory Forms matched with the format in the Regulations (Reg 79 and 83). He
stated that although security features were not a legal requirement of the Forms, the Commission, out
of abundance of caution, designed security features for the
651. ForMs Counsel also submitted that the 1st Respondent had complied with all the Orders of the Court,
including availing soft-copy access of the logs to the Petitioners who declined to accept them. This
is also indicated in the Experts Report. The Petitioners wanted to have the log in trails loaded from
the servers as they observed. It was Counsels submission that with regard to some of the Orders, the
limited time available to conduct the exercise precluded its completion because of the time dierence
between Europe and the United States where the Principal service Provider (Safron) and the company
subcontracted by Saron, resided.
652. Counsel revisited the entire issue of transmission and claried the dierence between the data that was
being broadcast on screen and the results in the portal. He elaborated that following the decision of
the Court of Appeal in the Maina Kiai case on the eve of the elections, the 1st Respondent had to
recongure the way it displayed information being sent from the Constituency and Polling centres.
He explained that sometimes, the data arrived without the accompanying image of the statutory Form,
hence the discrepancy. Counsel however urged that the 1st Respondent took every measure to align
its processes to the directions of the Court of Appeal which directions came literally, on the eve of the
elections.
653. Justice Lenaola, SCJ, queried the lack of a serial number on the statutory Form 34B used to declare the
results of Nyali Constituency, Mombasa County.
654. Mr Ngatia, counsel for the 3rd Respondent commenced his submissions with reference to Kisauni
Constituency. He noted that although it had been indicated that the Form 34B was not signed by the
Returning Ocer, the Form in his possession, which was supplied by the 1st Respondent indicated
that the same was indeed signed. Counsel also urged the Court to compare the Report on Nyali
Constituency with the Form 34B deposited in Court.
655. Counsel indicated that in some areas, lapses were occasioned by diculties such as broken down
printers as was the case in Isiolo South. Overall, counsel submitted that the numbers in these Forms
were not challenged and there was no discrepancy between the entry in Forms 34A and 34B.
656. After the bench retired to assess the evidence and make ndings on this exercise supervised by the
Registrar, I undertook a comparison of the complaints and allegations made by the Petitioner in both
reports - with the Forms 34A, and 34Bs that had been submitted to this Court under Section 12 of the
Supreme Court Act. In doing so I have made a number of ndings:
1. On the query raised by Justice Lenaola, SCJ, on the lack of a serial number on the statutory
Form 34B used to declare the results of Nyali Constituency, Mombasa County, I pulled the
Form out of the bundle of certied Forms provided to the Court by the 1st Respondent and
noted the following:
i. The Form has 4 pages that bears serial numbers - PR001004-5, PR001004-6,
PR001004-7, PR001004-8
ii. It is stamped;
iii. The name and Identity number of the Constituency Returning Ocer is indicated;
iv It is signed by the Returning Ocer;
v It is also signed by Agents for Uhuru Kenyatta and Raila Odinga;
vi. The Statutory Form was printed in landscape as opposed to portrait format as most of
the forms are. The serial number therefore was at the bottom left corner of the paper.
2. As regards the complaint regarding Kisauni, once again, I took the liberty to retrieve this Form
from the evidence deposited in Court by the 1st Respondent and note:
i. The Form has 4 pages that bears serial numbers PR001003-7, PR001003-8,
PR001003-9, PR001003-10.
ii. The Form 34B is signed by the Returning Ocer;It is stamped;
iii. Signed by 6 agents;
(vi) The handing over section has also been duly lled.
Regarding Likoni, which was also agged by counsel as being marked as unsigned, I examined the
certied copy of the Form 34B and noted:
1. It is signed by the Returning Ocer whose name and ID number are indicated;
2. It bears a serial number;
3. It has an anti-copying feature;
4. It is stamped and was signed by 8 Agents;
Thus I was able as a Judge sitting on an election cause to verify the issue in question.
657. Regarding the ICT Report, counsel submitted that the 3rd Respondent accepted the pre- downloaded
log trails as compliance with the Orders of the Court. It was submitted that according to the
Conclusion in the ICT Report, the 3rd Respondent submitted that the 1st Respondent indicated that
the read-only access would be available at 11am on 29th August, 2017. However, the Petitioners asked
for administrator rights which were beyond the purview of the Order of the Court.
In summary, and according to the ICT Report:
1. Information relating to the number of servers in possession of the 1st Respondent was
provided;
2. Information regarding Firewalls without disclosure of software version was not fully provided
because disclosing the internal and external rewall congurations would aect the security of
the systeMs However, schematic diagram and hardware models were provided;
3. Operating systems without the software version was supplied;
4. Password policy was provided; 5.Password Matrix was provided;
6. System user types and levels of access was also provided;
7. The Disaster recovery plan was also provided;
8. Certied copies of Penetration Tests conducted on the IEBC Election Technology System
prior to and during the elections were provided, together with the certicates;
8. GPS locations for the polling stations were provided. The Specic GPRS Locations for each
KIEMS kit was not provided;
8. Certied list of all KIEMS kits procured, provided;
11. Polling Station allocation for each KIEMS kit provided;
12. Technical Partnership Agreement(s) for the IEBC Election Technology System provided;
13. Pre-downloaded Log-Trails provided, but rejected by the Petitioners;
14. In conclusion the Report indicated that the 1st Respondent faced a number of challenges in
complying with the server Read only access order including:
a. Set up of the VPN Tunnel to the server
b. Connectivity challenges when accessing the cloud
c. Security protection measures that need to be upheld for elections.
658. I am satised that the terms of the Courts Orders were met to the best extent possible. Although the
parties seem to have diered on the interpretation of the Orders, I nd that they were very clear and free
from misconstruction. The Orders were of Access to Information and read-only access which included
copying (if necessary). The Courts Orders were very clear. They were also very distinct from the prayers
originally sought in the Application. The Court took the concerns of all the parties into consideration
before making a determination on the Application. Any inference into the intent or assumed Order
of the Court cannot therefore be left to ourish. For avoidance of doubt, I am in agreement with the
constitutional Court of South Africa in Firestone South Africa (Pty) Ltd v Genticuro A.G. 1977 (4) SA
298 (A) at 304 D-F on the interpretation of Court Orders:
(33) On interpreting court orders, authority tells us:
-The basic principles applicable to construing documents also apply to the

construction of a courts judgment or order: the courts intention is to be ascertained
primarily from the language of the judgment or order as construed according to
the usual, well-known rules. [A]s in the case of a document, the judgment or order
and the courts reasons for giving it must be read as a whole in order to ascertain its
intention. If, on such a reading, the meaning of the judgment or order is clear and
unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify,
or supplement it.[Emphasis added]
659. On this, the 1st Respondent expressed real threats with regard to exposing the inner workings of their
technology to external supervision or inuence owing to numerous considerations of a public nature.
We must acknowledge that the Commission is an independent Constitutional body with the powers to
regulate vital procedures such as the deployment of technology in elections. Although the Petitioners
prayed for unfettered access into the servers, the Court, in consideration of the security concerns and
in line with principles of justice and equity did not grant this but granted only specic limited orders to
information, which in my opinion were met. For the avoidance of doubt, this court did not give orders
for the Petitioner to access the Servers of the 1st Respondent, what was given was access to particular
read only information. The location of servers, the entry and penetration into the servers, were not part
of the orders given. It would be dangerous to expose the Commission to any administrative incapacity
in the future. The court has a responsibility to preserve the working systems of the IEBC for future
elections. I acknowledge and approve the following reasoning by the constitutional Court of South
Africa in Electoral Commission v Mhlope and Others (CCT55/16) [2016] ZACC 15; 2016 (8) BCLR
987 (CC); 2016 (5) SA 1 (CC). In this case, the constitutional Electoral commission of South Africa
approached the constitutional Court with prayers to condone certain shortcomings it had in the face
of an approaching by-election. the constitutional Court considered the remedies available stating:
[84]. I have spelt out the dicult position in which the IEC nds itself. Ordinarily, it would be
easy to dismiss its request on the basis that the situation in which it nds itself is of its own
making. But the reality is that – unlike litigation between private individuals where a partys
fault would aect it and it alone – here if something were to go wrong, the implications are
serious and likely consequences dire. To put it bluntly, the IEC would not be able to certify the
voters roll for want of the 12.2 million addresses. Without a certied voters roll, there can be no
elections. In terms of section 159(2) of the Constitution it is obligatory that the elections must
take place, and must do so not later than 16 August 2016. Indeed, the need for the regularity of
elections in the Constitutions founding values underscores the importance of this obligation.
Unsurprisingly, section 19(2) provides that -[e]very Citizen has the right to free, fair and regular
elections for any legislative body established in terms of the Constitution.
[85]. A threat of a possibility of the elections not taking place is a threat to our democracy itself.
An order that does not extricate the IEC from the impossible situation it is in may create a
constitutional crisis aecting the rights to vote and stand for political oce protected by section
19 of the Bill of Rights. As we are also bound by the Bill of Rights, we must be careful – as far
as possible – to prevent that from happening. We cannot – in a Pilatian manner – throw our
hands up in the air and say, If the crisis happens, so be it; the root cause is the IEC, not us. The
reality is facing us. What may we do, if anything
660. Consequently, I do not nd the 1st and 2nd Respondents in contempt of this Courts Orders and also
nd no basis to nullify the presidential election on the basis of any information revealed or otherwise
in the Report. I nd that the allegations of inconsistency in Forms 34A and 34B is veriable using the
existing paper-trail which was also in the possession of the Petitioner having requested the Court vide
a letter dated August 23, 2017 and the entire set of primary records provided in scanned form on 24th
August, 2017.
661. Regarding lack of security features on the Forms 34A and B, it is imperative to rst contextualize the
exercise that gave rise to these conclusions:
i. It was a party-led process not a court-led process
ii. It was a technical process that is usually the preserve of an election Court. As was elaborated
by the Court in its Ruling on access to information, scrutiny encompasses an examination of
the entire electoral material related to the election in a disputed polling station. This was not
the case in this instance.
iii. Some of the ndings are negated by reference to the statutory Forms deposited in Court
pursuant to Section 12 of the Supreme Court Act.
iv It was submitted that the presence of one security feature is sucient to insulate the statutory
Form from unauthorized reproduction. I nd that this is a sucient measure in the general
scheme of other tools of verication guaranteed by the Constitution and electoral law, including
ballots and other election materials.
v The presence of security features is neither statutory nor legal. It is administrative and therefore
one of the components of verication in the electoral process. (I have earlier in this Judgment
addressed the entire verication process in depth).
662. The Majority admits that security features are not provided for under any legal provision. The basis of
their determination is that there was no plausible explanation when Immaculate Kassait had indicated
that all Forms 34A and 34B bore these features. The Court however had the option to personally
examine the original Forms deposited in the Registry; the majority did not do so.
663. As such an Order for nullication based on this exercise that was merely based on controvertible and
speculative grounds, and is well below the standards set for nullifying an election, especially, where
other remedies, such as inspection of ballots, exist. The Majority, did not address themselves to any
other evidence in arriving at their determination. Had they systematically analysed the evidence, they
would not have determined the election on a tangential issue whose determination could easily have
been settled through reference, by the Court itself, to the evidence deposited by the 1st Respondent
48 hours after ling the Petition.
664. It is important to appreciate the circumstances under which the 1st Respondent was operating
immediately before the elections where they were dogged with Court cases which slowed down their
operations and their normal cohesive preparedness to conduct the elections was hindered. Elections are
public in nature. The actors and stakeholders involved in the electoral process ought to fully support
the 1st Respondent in the execution of its mandate. In instances of lapse, how is the Court to apportion
blame particularly in instances of active distraction from duty, by other actors and stakeholders
K. Evidence Submitted under Section 12 of the Supreme Court Act
665. The material deposited by the Commission pursuant to Section 12 (2) of the Supreme Court Act,
2011 enable the essence of the Supreme Court to discharge its mandate as the nal election verifying
avenue. It is imperative to mention that the Commission fully complied with this imperative. At the
time of determining this matter, all the material use to declare the results of the presidential election,
including Forms 34A and 34B had been deposited at the Supreme Court Registry by the Commission.
In furtherance of my duty as a Judge hearing a matter falling under the exclusive original jurisdiction of
this Court, I have considered all the allegations in the pleadings and supported evidence and responses
thereof, against this material.
666. Following the exercise Ordered by the Court on production of Forms 34A and 34B after which the
parties undertook a partial scrutiny of the Forms, Counsel for the Respondents urged the Court to
consider the Report in light of the Forms 34A and 34B that had been deposited in Court by the
Respondents as part of the mandatory discovery under Section 12 of the Supreme Court. I have already
analysed the Report based on the contents provided by the Registrar and the ICT experts in a foregoing
section. This section however follows the determination that an election Court, as the nal verifying
agency must employ the tools granted by the Constitution and Electoral law to enjoy that the ends of
justice are met and that the right of the electorate to vote and the candidates to vie for any position is
protected from illegal, or irregular practice, and electoral oence on the one hand or unfair exclusion
of votes on the other.
667. In the Registrars Report, it was noted that ve (5) Constituencies were in serious contention for want
of Form. The report indicated:
i. That Forms 34B in Kisauni, Nyali, Likoni, Mandera South and Isiolo South Constituencies
were not signed by the Returning Ocer.
ii. That Nyali Constituency Form 34B lacked a water mark.
iii. That Form 34B in Isiolo South was not signed by the party agents.
668. The evidence deposited in Court by the 1st and 2nd Respondents revealed that the disputed Forms
were proper in Form and bore all the relevant features. The observations are summarized hereunder:
Constituency No. of Pages Serial No. Signed by Ocial Signed by
the IEBC Stamp the Party
Returning Agents
Ocer
Kisauni 4 PR001003-7 Signed Stamped Signed

PR001003-8
PR001003-9
PR001003-10
Nyali 4 PR001004-5 Signed Stamped Signed

PR001004-6
PR001004-7
PR001004-8
Likoni 3 PR001005-8 Signed Stamped Signed

PR001005-9
PR001005-10
Mandera 2 PR009042-3 Signed Stamped Signed

South Not legible
Isiolo South 2 PR011050-8 Signed Stamped Signed

PR011050-10
669. The legality of Forms 34A and 34B was heavily contested by the Petitioners and evidence adduced on
the same. In the interest of justice, I set out to examine each of the Forms that had been disputed (with
particularity) in the detailed Adavit of Dr Nyangasi Oduwo in support of the Petitionand examined
whether the Forms met the test of verication set out on this Judgement.
Preliminary Observations;
i. 1640 Forms 34A and 34B in total were disputed with particularity ii.1349 Forms 34A were disputed,
with particularity
iii. All 291 Forms 34B were also disputed
iii. Having looked at all the Forms 34A and 34B (290 constituencies, 1 diaspora), I am satised that all the
Forms met the required threshold in Form and content. The ndings are summarized below:
AN ANALYSIS OF ALL FORMS 34B
L. Compliance
670. Section 83 of the Elections Act, 2011 stipulates:
-No election shall be declared to be void by reason of non-compliance with any written law
relating to that election if it appears that the election was conducted in accordance with the
principles laid down in the Constitution and in that written law or that the non- compliance
did not aect the result of the election.
671. Before this Court settled the meaning of Section 83 of the Elections Act in 2014, the Court of Appeal
had dealt with its interpretation in several cases:
i. Dr Thuo Mathenge & another v Nderitu Gachagua & 2 others Civil Appeal 29 of 2013; [2013]
eKLR
In this case, the irregularity was with regard to misprinting the name of the running
mate to the 1st appellant. The name of the running mate was misprinted as
Georey Kamau Kibui instead of Georey Gitonga Ndegwa. As a result of this,
the Appellants alleged that the supporters of the 1st appellant voted against him
because they felt that they had been misled. The Court of Appeal concurred with
the trial Courts nding and declined to nullify the elections. The Court held that
the elections were substantially in conformity with the law and the error on the
ballot papers did not aect the gubernatorial election results. The Court of Appeal
reiterated that the election could not be nullied as Section 83 of the Elections
Act prohibits an election from being declared a nullity on the grounds of non-
compliance with any written law relating to that election if it appears that the
election was conducted in accordance with the law; or if there is non- compliance,
the same did not aect the results.
ii. James Omingo Magara v Manson Onyongo Nyamweya & 2 others, Civil Appeal No 8 of 2010,
(Omolo, Tunoi, Githinji JJA) the Court of Appeal rearmed that Courts can preserve an
election conducted in accordance with the law. In this case, it was held:
-The courts will strive to preserve an election as being in accordance with the law,
even where there have been signicant breaches of ocial duties and election rules,
provided the results of the election was unaected.
In its conclusion, the Court of Appeal referred to the binding decision of the
Supreme Court in the Raila 2013 case in which the Court held that since the election
results reected the electoral intent of the people, the Court had a duty to uphold
the same.
iii. Peter Gichuki Kingara v Independent Electoral and Boundaries Commission & 2 others Civil
Appeal No 31 of 2013; [2014] eKLR-(Re-considered by the Supreme Court and proceedings
set aside for breach of time)
The Court of Appeal analysed the evidence regarding errors that were admitted by the
respondents in their pleadings and the 2nd respondents during cross-examination. Based on
these reasons, the Court of Appeal held that the totality of these irregularities, which were
unveriable most probably aected the result and the ultimate will of the Othaya constituents.
Consequently, the Court nullied the election.
iv. Dickson Mwenda Githinji v Gatirau Peter Munya & 2 others Civil Appeal No 38 of 2013;
[2014] eKLR (Overturned by the Supreme Court for deviation from the materiality test (S. 83)
In this case, the vote margin between the appellant and the 1st respondent was 3,436 votes.
This according to the Court of Appeal translated to a 0.819 per cent margin of the total votes
cast (423, 247). The crux of this appeal was whether the errors and irregularities disclosed by
the evidence on record materially aected the quantitative margin and the qualitative aspects
of the Meru gubernatorial election. Counsel for the appellant provided extensive arguments
on the application of the principles in the case Morgan v Simpson. The Court of Appeal also
held as follows [at paras. 91 and 92]:
-…..The margin between the winning and losing candidate is a factor in determining whether
the irregularity aected the results of the election. In deciding whether to annul an election, an
important consideration is whether the number of impugned votes is sucient to cast doubt
on the true winner of the election or whether the irregularities are such as to call into question
the integrity of the electoral process. If a court is satised that, because of irregularities, the
winner is in doubt, it would be unreasonable for the court not to annul the election. Before
annulling an election based on irregularity, the magic number test has to be considered. This
means that the contested or irregular votes casts when set aside must exceed the margin between
the winner and the runner up.
[92] …If after an arithmetical calculation has been made and the returned candidate still maintains
a lead over his nearest rival, the results of the election has not been materially aected...
(Emphasis added)
Additionally, the Court of Appeal analysed the qualitative and quantitative tests in order to
determine whether the non-compliance aected the result. It referred to two cases in which the
Court in Uganda and the Supreme Court in Kenya referred to the qualitative and quantitative
tests. In the Ugandan case of Winnie Babihuga v Masiko Winnie Komuhangi & Others
HCT-00-CV-EP.0004-2001, it was stated that the quantitative test is the most relevant where
the numbers and gures are in question whereas the qualitative test is most suitable where the
quality of the entire election process is questioned and the court has to determine whether or
not the election was free and fair.
This principle was reiterated here in the Supreme Court in the case of Ali Hassan Joho &
another v Suleiman Said Shahbal & 2 Others, Supreme Court Petition No 10 of 2013, in which
the Court held:
-Bearing in mind the nature of election petitions, the declared election results,
enumerated in the Forms provided, are quantitative, and involve a numerical
composition. It would be safe to assume, therefore, that where a candidate was
challenging the declared results of an election, a quantitative breakdown would be a
key component in the cause. It must also be ascertainable who the winner, and the
loser (s) in an election, are.(Emphasis added)
672. From the foregoing, the Court of Appeal held that the trial Judge erred and misdirected himself in
nding that a margin of 0.819 per cent which is less than 1 per cent could be described as wide. The
Court of Appeal held that the margin of 3,436 votes between the winner and runner up was statistically
small and that if the trial judge adjustment due to the proved errors and irregularities as disclosed
in the evidence of DW 10, the margin between the returned candidate and the runner up would be
signicantly impacted and the election result materially aected.
In Moses Masika Wetangula v Musikari Nazi Kombo & 2 others Civil Appeal 43 of 2013; [2014]
eKLR
In this case the Appellant was declared the winner of the election after garnering 154, 469 votes whereas
the runner up, the 1st respondent, garnered 125, 853 votes. The trial Court nullied the election on the
ground that the irregularities allegedly committed in the conduct of the elections aected the results
of the election. The Court of Appeal relied on the Raila 2013 case to the extent that a petition must
prove that the non-compliance with the election law impugned the integrity of that election.
The Court of Appeal also cited the three principles of Morgan v Simpson and held that the principle
that Section 83 of the Elections Act did not protect any election not conducted substantially in
accordance with the electoral law of that election and the same, would be null and void.
The nding of the Majority mirrors that of the Court of Appeal in this case. The conclusion is that, an
election that is not conducted substantially in accordance with the law relating to that election is null
and void regardless of the eect of that irregularity on the result of the election. The Court of Appeal
held that according to Section 83 of the Elections Act, 2011 the term used to demarcate the governing
principles in that provision was or not and which means that theviolation of either and not the two
aspects, together, would void anelection.
673. Interpretation of Section 83 of the Elections Act is not a new matter to this Court. In the Raila 2013
case, this Court engaged the import of this section in determining the principles of the Burden of
proof. Four impetrative principles emerged:
i. Where a party alleges non-conformity with the electoral law, the Petitioner must not only prove
that there has been non-compliance with the law, but that such failure of compliance did aect
the validity of the elections.
ii. It is on that basis that the respondent bears the burden of proving the contrary. This emerges
from a long-standing common law approach in respect of alleged irregularity in the acts of
public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have
been done rightly and regularly-This nding is similar to that by Justice Kimondo in Steven
Kariuki v George Mike Wanjohi & others Nairobi Election Petition No 2 of 2013, in which
he held that: Section 83 of the Elections Act is coached in the negative language introducing a
rebuttable presumption in favour of the respondents, that the election was conducted properly
and in accordance with the law.
iii. So, the petitioner must set out by raising rm and credible evidence of the public authoritys
departures from the prescriptions of the law.
674. Consequently, following a successful Appeal by Hon Peter Munya [Munya 2], to reconsider the
vitiation of his Gubernatorial election by the Appellate Court following the 2013 General elections,
we considered the application of Section 83 of the Elections Act in determining election causes. By a
unanimous decision of the Court, we cited with approval Lord Dennings dictum in Morgan v Simpson
(1975) 1 Q.B 151, and held as follows:
[210B] In this case, as in other election matters coming up before the Courts, the question as to the
nature or extent of electoral irregularities, and as to their legal eect, repeatedly arises. The crisp
issue is: how do irregularities and related malfunctions aect the integrity of an election
[211] In Morgan v Simpson (1975) 1 Q.B 151, Lord Denning evaluated cases that had been cited by
counsel and that had impacted upon the duty of Courts in making declarations upon hearing
election petitions. He summarized the law in three propositions:
1. If the election was conducted so badly that it was not substantially in accordance with
the law as to elections, the election is vitiated, irrespective of whether the result was
aected or not. This proposition came out of a case where 2 out of 19 polling stations
were closed all day thereby disenfranchising more than 5000 voters (re Hackney
Election Petition, Gill v Reed (1874) 2 OM & H.77)
2. If the election was so conducted that it was substantially in accordance with the law as
to elections, it is not vitiated by a breach of the rules or a mistake at the polls-provided
that it did not aect the results of the election.
3. But even though the election was conducted substantially in accordance with the law
as to elections, nevertheless if there was a breach of the rules or a mistake at the polls-
and it did aect the result-then the election is vitiated.
675. Although the Majority claims the maiden privilege of interpreting the provisions of Section 83 of the
Elections Act, this Court in the Munya case had already settled this issue in 2014. The ultimate decision
of this Court in the Peter Munya (2B) Case was summarized in four paragraphs:
(213) The Court observed that the practical realities of election administration are such that
imperfections in the electoral process are inevitable; and on this account, elections should not
be lightly overturned, especially where neither a candidate nor the voters have engaged in any
wrongdoing.
(216) It is clear to us that an election should be conducted substantially in accordance with the
principles of the Constitution, as set out in Article 81 (e). Voting is to be conducted in
accordance with the principles set out in Article 86. The Elections Act, and the Regulations
thereunder, constitute the substantive and procedural law for the conduct of elections.
(217) If it should be shown that an election was conducted substantially in accordance with the
only on ground of irregularities.
(218) Where, however, it is shown that the irregularities were of such magnitude that they aected
the election result, then such an election stands to be invalidated. Otherwise, procedural
or administrative irregularities and other errors occasioned by human imperfection, are not
enough, by and of themselves, to vitiate an election.
676. This interpretation was upheld in subsequent consistent decisions of the Supreme Court thus:
In Nathif Jama Adam v Abdikhan Osman Mohamed & 3 others, Supreme Court Petition
No 13 of 2014,
(85) Section 83 of the Elections Act is the denitive statement of the standard that an
election Court must apply, in verifying the election results. That Section is, at
the same time, a statement of the burden of proof resting upon the petitioner,
in an election petition.
(87) As to the eect of irregularities, and the point at which a Court should
overturn an election, we stated that Courts must only act on ascertained facts,
not conjecture, and must demonstrate how the nal statistical outcome has
been compromised.
677. In my concurring opinion in Evans Odhiambo Kidero v Ferdinand Waititu & 4 others, Pet. No 18 of
2014:
(348) Having examined the electoral code, and the emerging jurisprudence on elections, it is my
considered opinion that when a court of law is faced with the question whether or not to annul
an election the following are the fundamentals as can be deduced from Munya:
1. If it is demonstrated that an election was conducted substantially in accordance with
the principles of the Constitution and the Elections Act, then such an election is not to
be invalidated only on ground of irregularities.
2. Where, however, it is shown that the irregularities were of such magnitude that they
aected the election result, then such an election stands to be invalidated.
3. Mere allegations of procedural or administrative irregularities and other errors

occasioned by human imperfection are not enough, by and of themselves, to vitiate an
election. [Emphasis added]
678. The Supreme Court has consistently applied the test in Section 83 with the result of the election in
mind. The qualitative component (the result of an election) is an integral element of election causes.
In a Presidential election Petition, the Petitioner challenges the election of the President-elect (Art.
140(1). The result of the election of the President by Constitutional requirement is only ascertained
when the formula under Art. 138(4) of the Constitution has been met. Anyone challenging an election
must therefore challenge both the quantitative and qualitative aspects of the election.
679. Unlike the situation in Morgan v Simpson (which was a municipal election) or a Gubernatorial election
(as was the case in the Peter Munya (2B) case, the constitutional threshold in a Presidential election is
anchored on the numbers, the formula. The drafters of the Constitution were very clear that Kenyans
ought to elect, as President, a person who was acceptable to more than half of the voters in Kenya
and one supported by at least 25% of the votes cast in each of more than half the Counties. It is only
such a person who has garnered that percentage threshold in terms of popular support that is to be
declared elected as President. This was one of the irreducible minimums for a transformative change
in Kenyas electoral architecture. There was a purpose to this formula, the need for national cohesion, a
unifying personality and a nationally popular individual. In a petition relating to such an election, an
election Court must therefore ascertain that any question as to the quality of the election has aected
the constitutional quantitative threshold.
680. Let us put this in context in a hypothetical situation: assuming there is a Constituency with 55,000
registered voters. On Election Day, two candidates supporters in that Constituency create a violent
atmosphere where voters are intimidated, pulled out from stations, agents vehicles torched and election
ocials harassed. The situation is such that there can be no elections in that constituency. But
in all other Constituencies nationwide, the election has proceeded properly, with the fore-running
presidential candidate obtaining more than half of all the votes cast in the election and at least twenty-
ve of the votes cast in each of more than half of the Counties. The votes from that Constituency, even
if cast, would not aect the constitutional threshold necessary to declare the results of the election. Can
we nullify that entire election because there was violence, intimidation and voters in that Constituency
did not vote That is the test the Court should apply and it would consider the following questions:
i. Did the irregularities or illegalities aect the result? Would the results of the election have
reduced from more than half of the votes cast in the election? Would it have aected at least
twenty ve per cent of the votes cast in each of more than half of the Counties?
ii. Should the Court assess this test in the armative, then it should nullify the election. However,
if the constitutional mathematical threshold is not aected, nullifying the entire election would
have the eect of disenfranchising voters who did not vote in that constituency. What ought
the court do?
681. According to Barry H. Weinberg in his book The Resolution of Election Disputes: Legal Principles that
Control Election Challenges, 2nd Edition, pg. 103, the legal position is that election results will be
upheld unless it has been proved in Court that the irregularities or illegalities changed the result of an
election or made it impossible to determine the will of the electorate. He observes:
-Where the courts can determine which ballots were illegal but had been counted, those
ballots are subtracted from the candidates totals. Where the courts can determine which
ballots were legal but had not been counted, those ballots were added to the candidates
totals. After the illegal votes have been subtracted from the candidates totals and the legal
votes have been added, the candidates with the most votes will be the victor.
682. The upshot is that the alleged illegalities or irregularities ought to have a nexus with the declared result.
M. Preserving KenyaS Electoral Jurisprudence: Construing the Principle of Precedent in Electoral

Matters
683. Having set out my reasons for dissenting with the decision of the Majority, and having espoused
an interpretation of Section 83 of the Elections Act in line with the standards laid out in the Raila
2013 case, with the conclusion that any deviation from written law must be evaluated in terms of
the Constitution due to the sui generis and rights-centric nature of election causes, I note, with great
concern the disregard by the Majority of clear-set and settled principles of electoral dispute resolution
in the following terms:
a. The majority has reversed the interpretation of Section 83 laid out in the Peter Munya (2B) case
and armed by the Supreme Court in numerous cases by setting a standard for the conduct
of elections that is impossible to meet and that completely exposes the rights of the voter to
judicial trump. The will of the little man, walking to the little booth, marking his ballot with
a little mark, in secret and in free and fair elections has now been burdened with a standard
that does not take into account the existing environment within which elections are conducted
globally. The practice has been to check any errors (which are to be expected) against their eect
on the declared result of the elections.
i. the Constitution itself makes it imperative for the quantitative and qualitative elements
of declaration to be pleaded and proved to the required burden and standard before
an election can be set aside. Article 138(4) of the elections provides the numerical
consideration that must be satised before one can be declared to have been elected as
president.
ii. This numerical standard, ought to be checked against the terms of Article 38-did
every person have the freedom to vote Article 81(e)-were the elections free and fair
Article 83- did every person have an opportunity to be registered as a voter Article
86, was the voting method used simple, accurate, veriable, secure, accountable and
transparent Did the counting, tabulation and collation of votes announced promptly
by the presiding and returning ocers? Were there mechanisms to eliminate electoral
malpractice and was the election material safely stored? Article 88, were the elections
conducted by an independent electoral body and Article 82, was the conduct of the
election in line with legislation on elections-as read with the Constitution?
684. I now turn to examine the eect of reversing the electoral jurisprudence already settled by the Court
and applied across the country at all levels of Kenyas Judicial system. I shall address the following
questions in my analysis:
i. When can or should this Court depart or reverse itself from any of its previous decisions?
ii. What is the eect of wholesale reversal of electoral jurisprudence by the Supreme Court?
iii. What avenues exist for lower Courts?
685. This Court can depart from its previous decisions. Article 163(7) of the Constitution of Kenya, 2010
thus stipulates:
-All courts, other than the Supreme Court, are bound by the decisions of the Supreme
Court.
686. In the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Supreme Court Petition
No 4 of 2012, this Court had the occasion to consider instances when it can depart from its previous
decisions. Several principles to guide this matter emerged. This Court can depart from its previous
decisions:
i. In special circumstances
At Paragraph 40, the Court held:
…..As a matter of consistent practice, the decisions of the higher Courts are to be
maintained as precedent; and the foundation laid by such Courts is in principle, to
be sustained. This, of course, leaves an opening for the special circumstances which
may occasionally dictate a departure from previous decisions.
ii. For good cause after taking into account legal considerations of signicant weight:
At paragraph 43, the Court held:
In principle therefore, it follows that this Court, an apex Court, can indeed depart
from its previous decision, for good cause, and after taking into account legal
considerations of signicant weight.
iii. Where the impugned decision was obiter dictum (side-remark)
iv Where the impugned decision was given per incuriam

At paragraphs 50 and 51, the Court held:
For the special role of precedent in the certainty and predictability of the law as it
plays out in daily transactions, any departure is to be guided by rules well recognized.
It is a general rule that the Court is not bound to follow its previous decision
where such decision was an obiter dictum (side-remark), or was given per incuriam
(through inattention to vital, applicable instruments or authority). A statement
obiter dictum is one made on an issue that did not strictly and ordinarily, call for a
decision: and so it was not vital to the outcome set out in the nal decision of the
case. And a decision per incuriam is mistaken, as it is not founded on the valid and
governing pillars of law.
"the test of per incuriam is a strict one – the relevant decision having not taken into
account some specic applicable instrument, rule or authority."
[8] The consideration in this case in light of the Petitioners claim is: was the Judgement by
this Court in the Peter Munya (2B) case obiter dictum or delivered per incuriam The issue of
Section 83 was settled as follows in that case, at paragraphs 216-218:
216. It is clear to us that an election should be conducted substantially in accordance with the
principles of the Constitution, as set out in Article 81(e). Voting is to be conducted in
accordance with the principles set out in Article 86. The Elections Act, and the Regulations
thereunder, constitute the substantive and procedural law for the conduct of elections.
217. If it should be shown that an election was conducted substantially in accordance with the
only on ground of irregularities.
218. Where, however, it is shown that the irregularities were of such magnitude that they aected
the election result, then such an election stands to be invalidated. Otherwise, procedural
or administrative irregularities and other errors occasioned by human imperfection, are not
enough, by and of themselves, to vitiate an election
This determination proceeded on a full evaluation of pleadings, submissions and legal analysis. In
essence, it was not a side-remark. The analysis by the Court took into account all the applicable laws,
instruments and rules.
688. Have the circumstances in which the decision in Supreme Court Petition No 5 of 2013 changed so as
to warrant departure on the basis of special circumstances? It is important to note that the decisions of
this Court trigger various processes in legal reform or the constitutional performance of institutional
mandate. Therefore, a critical aspect of precedent is to preserve the certainty and predictability of the
law. In the Practice Statement (Judicial Precedent) [1966] 1WLR 1234 (HL) (Practice Statement) (cited
in George Mike Wanjohi v Steven Kariuki & 2 Others, Supreme Court Petition No 2A of 2014 (The
George Mike Wanjohi case), the Lord Chancellor extolled the virtues of precedent-law, thus:
" Their Lordships regard the use of precedent as an indispensable foundation upon which to
decide what is the law and its application to individual cases. It provides at least some degree
of certainty upon which individuals can rely in the conduct of their aairs, as well as a basis
for orderly development of legal rules."
[10] The circumstances that triggered this question in the Peter Munya (2B)
case were that the Court of Appeal had upset an election on the basis
of extrapolation of possible numerical errors in the conduct of the Meru
Gubernatorial elections. On Appeal, this Court reversed the Appellate Court
on the following basis:
[205] The appellate Court had been content to conclude that the
statistically small margin would have been signicantly impacted,
but without taking into account the numerical alignment of
votes. It would have been necessary for the appellate Court to
demonstrate how a gure of 3,436 win-votes would have so
diminished as to reverse the victory-outcome in favour of the
petitioner. Without such a demonstration, the scenario is one in
which an election was annulled on the ground of what might
have been and not necessarily, what was. This, in truth, amounts
to invalidating an election on speculative grounds, rather than
proven facts.
[205A] We would state as a principle of electoral law, that an election

is not to be annulled except on cogent and ascertained factual
premises. This principle ows from the recurrent democratic
theme of the Constitution, which safeguards for citizens the
freedom to make political choices [Article 38 (1)]. [Emphasis
Added]
689. This decision has guided the execution of the mandate entrusted by the Constitution onto the 1st and
2nd Respondents.
Are the circumstances in this instance dierent?

690. Although the doctrine of precedent does not stand in the way of progressive interpretation of the
law, this power must be used in a sparing and cautious manner to guarantee continuity, certainty and
adaptability. These three aspects must however be balanced with the requirement that justice be done.
Judicial guidance is an integral part of directing peoples relations. It follows that this critical aspect is
wasted if it becomes impossible to direct actions appropriately when similar facts and circumstances
are subjected to dierent standards of the law.
In the Mike Wanjohi case, this Court expounded on this question thus: At paragraph 83:
Dierent sets of facts present themselves in the adjudication of disputes before the Courts.
These varying facts fall for evaluation, interpretation and analysis, outcomes of which are
then weighed, in a process of judicial reasoning, against some dened principles of law, so as
to determine the respective rights of parties. Indubitably, the diering fact- situations make
every given case peculiar, and quite apart from the other. Bearing in mind that ascertained
legal principles of binding precedent are applied to ascertained factual situations, regard
should be had, in the course of identifying an applicable rule, to the principle that similar
fact-situations should be treated in a similar fashion. Where facts are materially dissimilar,
or the case is not analogous to the previous decision, this Court will always distinguish the
rule and may, in the interest of justice, choose not to apply its previous decision. This is
the guiding principle to be applied by this Court in distinguishing its decisions. [Emphasis
Added]
It follows that:
i. The facts in this case are not materially dissimilar to those in the Peter Munya (2B) case, on this
question save on the consideration of percentages in the declaration of presidential election
results. This distinction, only on purport of the numerical threshold and not the eect of
irregularities and illegalities in the conduct of an election and the eect of this on the nal
outcome of the result is evident at paragraphs 201 and 202 the Judgement thus:
201. It is clear that the Constitution requires that for one to be declared a winner in a
gubernatorial election, he or she needs to garner a majority of the votes.
This is the logical meaning to be attributed to the words greatest number of votes. It
matters not how wide or small the margin of victory is. Indeed, this is the requirement
in all the elections other than a Presidential election, where specic percentages are
prescribed by the Constitution.
202. The issue of margins in an election other than a Presidential election, can bear only
transient relevance and only where it is alleged that there were counting, and tallying
errors or other irregularities that aected the nal result. A narrow margin between the
declared winner and the runner-up beckons as a red ag where the results are contested
on allegations of counting and tallying errors at specied polling stations. Where a re-
count, re-tally or scrutiny does not change the nal result as to the gaining of votes
by candidates, the percentage or margin of victory however narrow, is immaterial as a
factor in the proper election-outcome. To nullify an election in such a context would
y in the face of Article 180 (4) of the Constitution.
ii. Similar fact situations ought to be treated in a similar fashion.
iii. This Court cannot therefore reverse, or distinguish its decision in Peter Munya (2B) on
material eect to the result of the election on the basis of special circumstances.
691. Recognizable political rights have vested in the parties concerned in this petition, and in the electorate.
The Petitioners would have to show that new circumstances, so grave and critical now exist to warrant
a departure from previous decisions of this Court displacing those political rights and public-interest
expectations on the part of the electorate. (See Mable Muruli v Wycliffe Oparanya, Supreme Court
Petition No 11 of 2014).
692. In the Kidero case, I held, in a concurring opinion, and in line with the consistent thread of authorities
set by this Court, set several distinctive principles on the critical place of precedent in our jurisdiction:
at paragraphs 236, 240 and 242:
(236) The principle of stare decisis in Kenya unlike other jurisdictions is a constitutional requirement
aimed at enhancing certainty and predictability in the legal system. The Articles of
establishment and jurisdiction reveal the Courts vital essence and the decisions of this Court
protect settled anticipations by ensuring that the Constitution is upheld and enforced and that
the aspirations of the Kenyan people embodied in a system of constitutional governance are
legitimized………
(240) As already noted, the signicance of Article 163(7) is to regulate the development and
settlement of our jurisprudence through the Supreme Court as the forum entrusted with
the nal mandate to interpret Kenyas transformative charter. This Court for instance bears
the nal responsibility of interpreting the constitutional propriety of Acts of Parliament as
demonstrated in the Joho case. Constitutional interpretation allows the countrys constitutive
charter to eectively guide the conduct of activities within the Republic This doctrine of
precedent liberates Courts from considering every disputable issue as if it were being raised for
the rst time. This Court constantly examines its own previous decisions where similar facts
abide as can be demonstrated in our consideration of election appeals. Under our mandate to
develop the law, we endeavour to expand pre-set principles when the circumstances of the case
permit.
(242) In applying case-law, one must consider the material conditions of the issue in question. One
must then assign the question to its proper class or consideration and observe the right points
of likeliness in the cases under consideration ………….
(15) Have the Petitioners adduced legal reasons of signicant weight as to persuade this
Court to depart from its previous electoral jurisprudence?
693. Section 3 of the Supreme Court Act and the body of jurisprudence from this Court is central on the
preservation, protection and armation of the Constitution. The framers of the Constitution were fully
aware that this is the only Court that can reverse itself as it is not bound by its own decisions. However,
considerations for reversal or departure must be carefully weighed against various considerations.
Departure from electoral jurisprudence is in my view inviting of an even rmer and higher restraint
from departure of well-settled principles. The Judiciary is one of several critical institutions that act as
anchors to the Constitution. The others are: the People, the Executive, the Legislature, Independent
Commissions, State Oces and Ocers. All these institutions interact with the law and with each
other in a manner that is clear, certain, stable and predictable. A dierent approach would threaten the
fabric of institutional legal interaction. The law is a primary limb of the body politic.
694. I am persuaded by the opinion of Justice Aharon Barak, Former Chief Justice and President of the
Israeli Supreme Court in his book, The Judiciary in A Democracy, Princeton University Press, at page
158 that on the full scope of precedent and the need to balance the interests of justice by following
precedent or by deviating from it :
A judge stands before a dilemma: to follow precedent previously determined by his Court,
or deviate from it? The Judge must use his discretion reasonably. What should the Judge do?
The reasonableness test requires the Judge to consider on the one hand all considerations
supporting the honouring and following of the precedent. On the other hand, the judge
must consider the full scope of considerations pointing toward deviation from precedent
and choosing new law. The Judge must assign each one of these systems of considerations
its proper weight. Having done that, the judge must place both on the scale. The Judge
must choose the prevailing ruling; the judge must choose the Ruling whose utility is greater
than the damage caused by it. The guiding principle should be this: it is appropriate to
deviate from a previous precedent if the new precedents contribution to the bridging of the
gap between law and society and to the protection of the Constitution and its values after
setting o the damage caused by the change, is greater than the contribution of the previous
precedent to the realisation of those goals.
Deviation from precedent, particularly precedent of the highest Court is a serious matter,
great sensitivity is needed to weigh all the considerations. [Emphasis added]
695. The doctrine of stare decisis is a critical element of our legal system, providing certainty and
predictability in the law as consistently guided by this Court. Aptly put in the case of Peter Gatirau
Munya v IEBC & 2 Others, Supreme Court Petition No2B of 2014. in a concurring opinion by
Mutunga CJ (as he was then) at (paragraph 228):
Under Article 163(7) of the Constitution, all Courts, other than the Supreme Court, are
bound by the decisions of the Supreme Court. Thus, the adopted theory of interpretation
of the Constitution will bind all Courts, other than the Supreme Court. It will also undergird
various Streams and strands of our jurisprudence that represent the holistic interpretation
of the Constitution.‘‘
696. Although this Court is not bound by its decisions and can review or depart from them, such
considerations only ought to be in the clearest of cases, and distinguishable in fact, circumstances and
relevance as elaborated in the foregoing paragraphs. The majority has failed this critical test. I must
add that the value of their deviation from precedent damages more than it oers utility. It will cause
damage to the legal system because it turns the entire electoral jurisprudence on its head.
697. Every arm of Government has the unique role of defending the Constitution, the Bill or Rights and
the Sovereignty of the people. The essence of a system of checks and balances is to ensure that when
one constitutional branch threatens the entire schematic ordering of the Constitution and the State,
the other is ready to check these actions. Having been part of the inaugural Supreme Court and
having steadily and consistently settled the law on elections, the interpretation of Section 83 by the
Majority will unleash jurisprudential confusion never before witnessed. Unfortunately, we are part of
the common law system, encumbered by rules requiring lower Courts to pay due deference to the
Courts above. Parliament must therefore untie the hands of Courts below by clarifying the meaning
of Section 83 of the Elections Act. That is the only way that we can avert a crisis of jurisprudence in
such a sensitive area of law, as elections.
697A. However, in the meantime, lower Courts are not without an option. The decision by the Majority is
one given in a presidential election and which does not usurp the jurisdiction of the lower Courts in
electoral disputes. At paragraph 207 of the Raila 2013 case, we held:
[207] The Supreme Court cannot roll over the dened range of the electoral process like a colossus.
The Court must take care not to usurp the jurisdiction of the lower Courts in electoral
disputes. It follows that the annulment of a Presidential election will not necessarily vitiate
the entire general election. And the annulment of a Presidential election need not occasion a
constitutional crisis, as the authority to declare a Presidential election invalid is granted by the
Constitution itself. [Emphasis added]
N. Conclusion
698. Having now looked at the full reasons of the majority judgment, I briey make the following initial
observations:
I. The Petition contained numerous allegations of irregularity, illegality and electoral oences,
enough, if proved to the required burden and standard, and if it aected the result, to void
the Presidential election. The allegations were however not proved and where evidence was
adduced, there was sucient evidence to rebut the allegations. [Paragraph 42 of this dissenting
judgment sets out those allegations]
II. According to the Majority, the determination of nullity turns only on one limb:
verication. The Majority espouses the following conclusions:
i. That the election declaration path set by the Constitution and the electoral law was not
veriable.
ii. There was lack of security features on the Statutory Forms 34A and 34B sampled by
the parties during the Access to Information Exercise supervised by the Registrar of
this Court.
iii. There was failure by the 1st Respondent to comply with the Orders of the Court
as commanded in the Ruling dated August 28, 2017 on the Notice of Motion
dated August 25, 2017. The Majority in fact acquiesces to the Petitioners allegations
that the Information Technology system was inltrated and compromised solely
on a misplaced notion that the 1st Respondent withheld the information required.
Reference to the ICT experts Report will however show that the information
was provided in soft copy but rejected by the Petitioners who demanded physical
witnessing of log-trail harvesting.
iv The Majority also makes an assumption, that the votes cast for the President were
dierent (by a small margin I might add) from those cast in favour of Governors
and Members of Parliament. They disregard the perfect choice of a voter to only cast
preferred ballots and turn in unused ballots as spoilt (and which in turn are stored
in tamper proof packets). It appears that the Majority expected that the voters were
obliged to cast all six ballots provided.
vi. The Majority focused on a narrow inference of verication and placed this obligation
solely at the door of the 1st Respondent ignoring the agents, candidates and other
agents of verication present, including the Court itself as the nal verifying agency.
Nothing would have been easier than to call for the election material, which is available
and not tampered with, to ascertain the number of spoilt ballots to explain the
discrepancy between the votes cast for the President and other candidates. Was this
unknown and dangerous standard to be applied elsewhere, some of the candidates who
garnered more votes than the President in their electoral units would suer the same
fate.
vi. The grave allegations made were not considered deeply or at all. The Majority went
straight for the technical/formalistic issues and reversed the precedent in Munya 2 on
Section 83 to justify their conclusion.
699. Election causes ought to be determined in light of the highest consideration of the right of the electorate
to vote in free and fair elections.
700. This Court must never abdicate its duty as an election Court exercising exclusive original jurisdiction
to hear and determine disputes relating to the elections relating to the elections to the oce of president
arising under Article 140 of the Constitution. As an election Court, the Court must not narrow the
scope of its remedies nor delegate its powers to the parties. The zeal of the voter to participate in
elections and the overwhelming responsibility of every State Organ and stakeholders to conduct free,
fair and peaceful elections must be matched by equal zeal from the Court. The Majority nullied the
conduct of the Presidential elections solely on the basis that some Forms 34A and 34B lacked security
features which are elected by the Commission and spread in dierent versions across most ForMs
The Majority, in the aftermath of the Registrars report did not even attempt to peruse the enormous
evidence deposited by the 1st and 2nd Respondents bearing certied copies of Forms 34A and 34B of
the Constitution and against which they ought to have checked the alleged irregularities. By subjecting
the integrity of the election to considerations of design, that are neither statutory nor regulatory, the
Majority has not only threatened the peoples belief in the electoral system, it has overburdened and in
fact, negated the electorates right to franchise.
701. Mr Slobodan Milacic a Professor Emeritus at Montesquieu University, in "Justice Coming face to
face with electoral norms" a Chapter in the Book, The Cancellation of Election results The Science and
Technique of Democracy No 46; (2010) Council of Europe pages 25-67, states that the will of the
electorate is ultimately the core of any electoral process and it should be jealously guarded by the Courts
in order to maintain public condence in the electoral process. In that regard he makes the following
remarks, which I cite with approval:
The importance, in a democracy, of a transparent and fair electoral process for both
individual and collective rights to be respected immediately takes on real shape if one but
thinks of electoral crises. The guiding principle in the exercise of a constitutional jurisdiction
is that the function of the court is ultimately to ensure the prevalence of the will of the
electorate. If this were not so, public condence in the election process would be heavily
compromised. It is important that the public perception remains throughout that it is the
decision of the electorate that has prevailed.‘‘ [Emphasis added]
702. In election causes, the Majority ought to have to disengaged the mechanical gear of Appellate
Jurisdiction and fully considered the evidence against the dictates of burden and standard of proof.
The absence of time is not a sucient excuse. The Court has a competent institution of research and
is well facilitated to be able to perform the role of an election Court as a nal verifying agent in cases
of monumental importance such as the present Petition.
703. I wish to make a short observation on the following paragraph in the conclusion in the decision of the
Majority, where they said:
Let this Judgement then be read in its proper context; the electoral system in Kenya today
was designed to be simple and veriable. Between August 8, 2017 and August 11, 2017,
it cannot be said to have been so. The petition before us was however simple and to the
point. It was obvious to us, that IEBC misunderstood it, hence its jumbled-up responses
and submissions. Our Judgement is also simple, and in our view clear and understandable.
It ought to lead IEBC to a soul-searching and to go back to the drawing board. If not, this
Court, whenever called upon to adjudicate on a similar dispute will reach the same decision
if the anomalies remain the same, irrespective of who the aspirants may be. Consistency and
delity to the Constitution is a non- wavering commitment this Court makes.
704. This paragraph, to my mind is unfortunate – it is injudicious and imprudent. I reiterate, in the
strongest terms, the following observation obtaining from my dissenting Judgement in Speaker of the
Senate & another v Attorney-General & 4 others, Supreme Court Advisory Opinion No 2 of 2013;
[2013] eKLR
(249) Just as Parliament is expected to operate within its constitutional powers as an arm of
government so must the Judiciary. The system of checks and balances that prevents autocracy,
restrains institutional excesses and prevents abuse of power apply equally to the Executive,
the Legislature and the Judiciary. No one arm of government is infallible and all are equally
vulnerable to the dangers of acting ultra vires the Constitution. Whereas, the Executive
and the Legislature are regularly tempered and safeguarded through the process of regular
direct elections by the people, the discipline of an appointed and unelected Judicial arm of
Government is largely self-regulatory. The parameters of encroachment on the powers of other
arms of government must be therefore clearly delineated, limits acknowledged and restraint
fully exercised. It is only through practice of such cautionary measures that the remotest
possibility of judicial tyranny can be avoided.
705. Having evaluated the entire bundles of evidence submitted by the parties, and having checked the
allegations made by the Petitioner against that evidence, it is clear to me that, had the Majority been
engaged in the mode of a Court of exclusive original jurisdiction, it would have found that each and
every allegation in the Petition was addressed to a satisfactory standard and where and if, the burden
of proof shifted, the Commission discharged it satisfactorily.
706. In light of the foregoing, had I been in command of the Majority (and I am not), this would have been
my determination:
A. Determination :
707. Having analysed the various sections laid out in the Rubric, having disagreed with the decision of the
Majority and having consistently interpreted the Constitution to reect the call in the Constitutions
preambular paragraph: the people of Kenya, exercising their sovereign and inalienable right to
determine the form of governance of our country, I hereby set down the Orders that ow from the
ratio:
1. As to whether the 2017 Presidential Election was conducted in accordance with the principles
laid down in the Constitution and the law relating to elections, I nd it was so properly
conducted and in particular with reference to Articles 1 and 38 of the Constitution of Kenya,
and supported by Articles 2, 10, 81, 82, 83, 86 and 138.
2. As to whether there were illegalities committed in the conduct of the said election, I am satised
that there was no instance of fraud or illegality found or proven.
3. As to whether there were irregularities committed in the conduct of the said election, I am
satised that any irregularities that were found did not favour any particular candidate and
could not have impacted in any way, on the result of the election.
4. As to whether the election was properly conducted by the 1st Respondent in accordance with
the Constitution and the laws relating to elections, I am satised that with all the attendant
challenges of conducing a national election, that it was so properly conducted.
5. As to whether the 2nd Respondent properly declared the 3rd Respondent as President-elect
in accordance with Article 138(4) and 138(10) the Constitution, I am satised that indeed he
did so.
6. As to whether the 3rd Respondent was validly and properly elected to the oce of President
of the Republic of Kenya, I am satised from all the evidence assessed that he indeed was.
7. Petition No 1 of 2017 is hereby dismissed.
8. Each party shall bear their own costs.

DATED AND ISSUED AT NAIROBI THIS 20TH DAY OF SEPTEMBER, 2017.
…………………………………………..
DK MARAGA
CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT
……….……………………………………
PM MWILU
DEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT
………………………………………….
JB OJWANG
JUSTICE OF THE SUPREME COURT
…..…………………………………………….
SC WANJALA
…………………………………………
NJOKI S NDUNGU
…………………………………………
I LENAOLA
I certify that this is a true copy of the original.
REGISTRAR,
SUPREME COURT OF KENYA

Raila Amolo Odinga & Another vs. IEBC & 2 Others (2017) eKLR

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Odinga & another v Independent Electoral and Boundaries Commission & 2 others;

D. Petitioners‘ and the 1st Interested Party‘s Case

ii. Improper Inuence, Corruption, Misconduct and Undue Inuence

iii. Failure in the Process of Relaying and Transmitting Results

iv Substantive Non-compliance, Irregularities and Improprieties that Aected Results

v Errors in the Voting, Counting and Tabulation of Results

vi. Unprecedented and Contradictory Quantity of Rejected Votes

vii. Interpretation and Application of Section 83 of the Elections Act

g. A declaration that the non-compliance, irregularities and improprieties in the Presidential

m. Costs of the petition.

E. Respondents And 2nd Interested Party‘s Case

ii. Failure in the process of relay and transmission of results

iii. Intimidation and Improper Inuence or Corruption

iv Substantial Non-compliance, Irregularities and Improprieties that Aected the Results

i. Voting, Counting and Tabulation of Results

vi. Unprecedented and contradictory quantity of rejected votes

vii. Interpretation and Application of Section 83 of the Elections Act

viii. Alleged Specic Irregularities

ii. The Law Society of Kenya

G. Issues for Determination

H. Interrogating The Emerging Legal Principles

ii. Standard of Proof

iii. Valid Versus Rejected Votes in a Presidential Election in Kenya

iv The Meaning of Section 83 of the Elections Act

"I take it to be an elementary rule of constitutional construction that no one provision of

ii. free from violence, intimidation, improper inuence or corruption;

iii. conducted by an independent body;

v administered in an impartial, neutral, ecient, accurate and accountable manner.

It is clear to us that an election should be conducted substantially in accordance with

… without delay [the Electoral Commission of Kenya] ECK starts … [developing]

Subsection (3) thereof provides that:

For purposes of a presidential election the Commission shall-

a. electronically transmit, in the prescribed form, the tabulated results of an

a. a poll register in respect of every polling station;

b. a ward register in respect of every ward;

c. a constituency register in respect of every constituency;

d. a county register in respect of every county; and

e. a register of voters residing in Kenya."

Section 10 (1) of the Elections Act provides that:

Parliament also, introduced a new section 6A to provide inter alia; that:

The Mystery of Forms 34A and the conundrum of electronic transmission

249. Again on August 14, 2017, the deponent wrote:

257. What was Mr Nyamodi saying

"For purposes of a presidential election, the Commission shall-

a. Electronically transmit, in the prescribed form, the tabulated results of an

Further, the Court of Appeal stated thus:

a. whatever voting method is used, the system is simple, accurate, veriable,

d. appropriate structures and mechanisms to eliminate electoral malpractice are

(a) Illegalities Allegations of Undue Inuence, Bribery and voter intimidation

No government shall publish any advertisements of achievements of the respective

2. No government shall publish any advertisements of achievements of respective government

(1) A person who directly or indirectly in person undue inuence or through

a. Inducing or compelling a person to vote or not to vote for a

b. Inducing or compelling a person to refrain from becoming a

c. Impeding or preventing a person from being nominated as a

(3) A person who directly or indirectly by duress or intimidation""

b. In any manner inuences the result of an election, commits an