Odinga & 16 Others V Ruto & 10 Others; Law Society Of Kenya & 4 Others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 Of  (Consolidated))  KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment)
Case Number: Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)
Date Delivered: 05 Sep 2022
Judge: Martha Karambu Koome, Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu
Court: Supreme Court of Kenya
Parties: Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae)
Citation: Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated))  KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment)
Supreme Court upholds the election of William Samoei Ruto as the Fifth President of the Republic of Kenya.
On August 9, 2022 Kenya held the third general election under the Constitution of Kenya, 2010 (Constitution). Transmission of the results of the general election was done via the Kenya Integrated Electoral Management System (KIEMS); a technology used in the biometric voter registration, and, on the election day, for voter identification as well as the transmission of election results from polling stations to the National Tallying Centre.
On August 15, 2017, the chairperson of the Independent Electoral and Boundaries Commission (IEBC) (4th respondent) declared the 1st respondent, William Samoei Ruto, the Presidential Candidate for the United Democratic Alliance Party, (1st respondent) the President-elect with 7,176,141 votes (50.49% of presidential votes cast) and the 1st petitioner, Raila Amollo Odinga as the runners up with 6,942,930 votes (48.85% of presidential votes cast).
Aggrieved by the results and the process by which the results were obtained and declared, the 1st petitioners, Raila Odinga and Martha Karua, who were the presidential and deputy presidential candidates respectively of the Azimio La Umoja Coalition of parties filed the instant petition challenging the declared result of that presidential election (the election). Alongside the 1st petitioners were a bundle of 6 other petitioners that also challenged the result of the presidential election; in total they filed 9 presidential election petitions.
The 1st, 3rd and 4th petitioners in the consolidated Petition, challenged the technology used by IEBC during the 2022 General Election. They pleaded that the manner in which technology was deployed and utilized fell short of the prescribed constitutional and statutory standards. As regarded the audit of the Register of Voters, they urged that IEBC, pursuant to its Elections Operations Plan, committed itself to conducting an audit of the Register of Voters by March 31, 2022. To the contrary, they alleged, it only publicly availed the audit report on its website on August 2, 2022, 7 days to the election.
In response, IEBC submitted that the electoral system met the constitutional threshold; that all necessary information was accessed only by authorized persons; the information was accurate, complete and protected from malicious modification either by authorized or unauthorized persons; it maintained an audit trail on activities related to information; and the information was available and could be authenticated through the use of various security features.
The 1st petitioners further alleged that the results of the presidential election were staged. They claimed that a person who had access to the Result Transition System (RTS), intercepted, detained or stored Forms 34A temporarily to convert or manipulate them before uploading them on IEBCs public portal.
To rebut the allegation, IEBC through its chairperson denied staging and unauthorized intrusion of the RTS. In that regard, they urged that every image of Forms 34A was uploaded immediately after the transmitted result form was received as evinced by the time stamp.
The petitioners also challenged the authority and the decision of the IEBC or its chairperson to postpone the gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency. They contended that the IEBC had no jurisdiction to postpone elections in those areas. They further contended that section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward contrary to the Constitution. They contended that the postponement undermined the conduct of free, fair and credible elections by depriving the voters an opportunity to vote for all the candidates on the date stipulated by the Constitution. The 1st and 3rd petitioners also believed that elections were deliberately postponed in Kakamega and Mombasa counties. It was alleged that those areas were considered to be 1st petitioners strongholds, and as such, the postponement of elections worked to his disadvantage and handed a benefit to the 1st respondent.
Those assertions were denied by IEBC and its chairperson. They however, admitted that they experienced confusion with the printed ballot papers and explained that they only discovered the mix-up on the eve of the Election when the ballot papers were being distributed to the polling stations; that as a practice, ballot papers could only be opened on the eve of the election day to avoid any mischief; and that by the time the mix-up was discovered, it was logistically impossible to print and replace the ballots papers in time for the election.
The petitioners also contested the formula used by the IEBC or its chairperson to declare that the 1st respondent had obtained the threshold of 50% + 1 of the votes cast in the presidential election. In particular, they challenged the rounding off. They contended that the rounding off of votes cast in a presidential election as a means of assessing the threshold under article 138(4) of the Constitution killed and birthed voters, which was illegal and unconstitutional.
Lastly the petitioners challenged the results of the presidential election on account of the opaque nature of the verification exercise at the National Tallying Center. On August 15, 2022 as the public waited for the chairperson of the IEBC to declare the final result, Kenyans found themselves watching a split screen scenario on their television sets. On one part of the screen was the chairperson, readying himself to declare the result of the presidential election; on the other part of the screen were the 5th to 8th respondents (the 4 Commissioners) on the lawns of the Serena Hotel-Nairobi, from where they announced that they would not own the results that were soon to be declared by their chairperson. The 4 commissioners termed the results opaque due to the manner in which the chairperson had been conducting the verification and tallying exercise. They contend that by rejecting IEBCs results on grounds of opaqueness of the verification and tallying process, they called into question, the credibility of the entire election. They further submitted that being in the majority out of the seven-member Commission, their view should prevail and the election should be nullified. It was the petitioners argument, therefore, that a dysfunctional Commission could not deliver a credible election.
Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.
Whether there was interference with the uploading and transmission of Forms 34A from the polling stations to the IEBC Public Portal.
Whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents at the polling stations.
Whether the IEBC acted ultra vires their powers in postponing gubernatorial, parliamentary and ward elections in select counties during a general election due to some unforeseen hindrances.
Whether postponement of gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency by the IEBC resulted in voter suppression to the detriment of the petitioners.
Whether the role of verifying and tallying of votes as received from polling stations countrywide could be undertaken by the chairperson of the IEBC to the exclusion of other IEBC Commissioners.
Whether regulation 87(3) of the Elections (General) Regulations was unconstitutional, to the extent that it purported to vest the power of verification and tallying in the chairperson of IEBC.
Whether the discrepancies between the total number of votes cast for presidential candidates vis--vis the total number of votes cast for other elective positions by itself was an indicator of fraud.
Which party bore the burden of proof in election petitions?
Whether the IEBC carried out the verification, tallying and declaration of results in accordance with article 138(3)(c) and 138(10) of the Constitution.
Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with article 138(4) of the Constitution.
Whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election.
(1) The Commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county or ward for such period as it may consider necessary where
(a) there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date;
(b) it is impossible to conduct the elections as a result of a natural disaster or other emergencies,
(c) that there has been occurrence of an electoral malpractice of such a nature and gravity as to make it impossible for an election to proceed.
(2) Where an election is postponed under subsection (1), the election shall be held at the earliest practicable time.
(3) Notwithstanding the provisions of this section, the Commission may, if satisfied that the result of the elections will not be affected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made.
Elections (General) Regulations.
87. Returns of persons elected.
(3) Upon receipt of Form 34A from the constituency returning officers under sub regulation (1), the Chairperson of the Commission shall
(a) verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre;
(b) tally and complete Form 34C;
(c) announce the results for each of the presidential candidates for each County;
(d) sign and date the forms and make available a copy to any candidate or the national chief agent present;
(e) publicly declare the results of the election of the president in accordance with Articles 138(4) and 138(10) of the Constitution;
(f) issue a certificate to the person elected president in Form 34D set out in the Schedule; and
(g) deliver a written notification of the results to the Chief Justice and the incumbent President within seven days of the declaration; Provided that the Chairperson of the Commission may declare a candidate elected as the President before all the Constituencies have delivered their results if in the opinion of the Commission the results that have not been received will not make a difference with regards to the winner on the basis of Article 138(4)(a) and (b) of the Constitution; and Kenya Subsidiary Legislation, 201 7 379 (h) in the case of the other elections, whether or not forming part of a multiple elect ion, publish a notice in the Gazette, which may form part of a composite notice, showing the name or names of the person or persons elected.
Lack of trust in the electoral system had endured in Kenya for a long time. That led to the introduction of electoral technology via section 44 of the Elections Act, 2011. Under the Elections Act, IEBC was enjoined to adopt technology in the electoral process. IEBC developed a technology known as the Kenya Integrated Electoral Management System (KIEMS) making Kenyas election process hybrid as it employed both technology and manual processes.
The technology deployed by IEBC did not fail the standard of article 86(a) of the Constitution on integrity, verifiability, security and transparency for the following reasons:
whereas it was true that the KIEMS kit failed in 235 polling stations, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly filled. That happened successfully in Kibwezi West Constituency and parts of Kakamega County.
While the Audit Report was released to the public seven days before the August 9, 2022 election, the register of voters was used at the election without any apparent anomalies.
Smartmatic was procured to provide the necessary technological infrastructure as IEBC did not have the capacity to do so. No credible evidence meeting the requisite standard of proof of access to the system by unauthorized persons was adduced by the petitioners.
The Scrutiny Report prepared by the Registrar of the Supreme Court (the Report) (the Registrar) did not reveal any security breaches of the IEBCs RTS.
IEBC successfully deployed a Biometric Voter Register (BVR) system which captured unique features of a voters facial image, fingerprints and civil data, to register and update voter details across the country and in the diaspora. Those features were unique to each voter.
In compliance with section 6A of the Elections Act, 2011, IEBC opened the register of voters for verification of biometric data by members of the public for a period of 30 days. Thereafter, the Register was revised to address issues arising from the verification exercise. KPMG then audited the register and the inconsistencies and inaccuracies identified during the Audit were successfully addressed.
No credible evidence was presented to prove that anyone accessed the Result Transmission System (RTS) to intercept, detain or store Forms 34A temporarily before they were uploaded onto the Public Portal. The allegation that 11,000 Forms 34A were affected by staging was not proved.
The allegation that IEBC, its officials and strangers used a tool to tamper with the Forms 34A before converting them to the Portable Document Format (PDF) format that eventually appeared on the Public Portal was sufficiently explained when IEBC demonstrated how KIEMS captured and transmitted the image of Forms 34A. The allegation was dismissed.
The transmission logs produced by the petitioners were of no probative value after the ICT scrutiny. The Registrar of the Supreme Courts Report showed that the original Forms 34A from the contested polling stations which were allegedly intercepted were exactly the same as those on the Public Portal and the certified copies presented to the Supreme Court under section 12 of the Supreme Court Act, 2011.
The allegation that the integrity of the Public Portal was compromised was disproved by evidence of consistent attributes such as unique time stamps, uniform PDF conversions at the polling stations, correct polling station mapping and consistent KIEMS reporting from verification to transmission of results.
The RTS was configured on a Virtual Platform Network (VPN) and the SIM cards locked to a specific polling station. The server was also configured to accept results only from authorized and properly mapped KIEMS kit. The petitioners failed to produce credible evidence to the contrary.
A review of some of the logs presented as evidence of staging showed that they were either from logs arising from the 2017 Presidential Election or were outright forgeries. There was no evidence of a man in the middle server configured to the IEBCs VPN network; and no evidence was produced to show that the chairperson of IEBC and staff were part of the alleged conspiracy to stage the transmission process.
There were no significant differences captured between the Forms 34A uploaded on the public portal and the physical Forms 34A delivered to Bomas (National Tallying Center) that would have affected the overall outcome of the presidential election.
No credible evidence was presented to support the allegation that Forms 34A presented to agents differed from those uploaded to the Public Portal. The Report by the Registrar confirmed the authenticity of the original forms in the sampled polling stations.
The affidavit evidence presented by the petitioners, while containing sensational information, was not credible as the Registrars Report confirmed that all the Forms 34A attached to those affidavits and purportedly given to them by agents at select polling stations were significantly different from the originals, certified copies and those on the public portal.
The purported affidavit evidence was not only inadmissible, but were also unacceptable. It had been established that none of the agents on whose behalf the forms were being presented swore any affidavit; that there was nothing to show that they had instructed both Celestine Opiyo and Arnold Oginga (counsel for the petitioners) to act for them. Yet the two had gone ahead to depone on matters that were not within their knowledge. The Court could not countenance such conduct on the part of counsel who were officers of the court. Affidavits filed in court had to deal only with facts which a deponent could prove of his own knowledge. As a general rule, counsel were not permitted to swear affidavits on behalf of their clients in contentious matters because they ran the risk of unknowingly swearing to falsehoods and could also be liable to cross-examination to prove the matters deponed. Sections 113 and 114 of Penal Code provided that swearing to falsehoods was a criminal offence, and it was an offence to present misleading or fabricated evidence in any judicial proceedings. One of the most serious losses an advocate could ever suffer was the loss of trust of judges for a long time. Such conduct amounted to interference with the proper administration of justice.
The contents of the affidavit of John Mark Githongo, which was alleged to contain forgeries, were dismissed for not meeting the evidential threshold. They contained no more than incredible and hearsay evidence. No admissible evidence was presented to prove the allegation that Forms 34A were fraudulently altered by a group situated in Karen under the direction of persons named in the affidavit and video clip attached to it. His two affidavits amounted to double hearsay, and incapable of being proved at each layer. In addition, no probative value was found on the allegation that Jose Carmago had accessed the RTS and interfered with the result.
The KIEMS kit relating to Psongoywo Primary School which bore the same serial number with another was admitted by IEBC as an inadvertent manufacturers error. The two kits had other identifying features that were markedly different including the time stamps and polling code. Nothing turned on that anomaly. There was no difference between Forms 34A uploaded on the IEBC Public Portal, those received at the National Tallying Centre, and those issued to the candidates agents at the polling stations.
IEBC postponed elections for various seats during the general elections of August 9, 2022 due to a mix-up of ballot papers in the named electoral units. Section 55B of the Elections Act, 2011, provided for circumstances when elections could be postponed in a particular electoral unit including in cases of emergency. The 3rd respondent had the requisite power to postpone elections in the constituencies, counties and wards in question.
Voter suppression was recognized as a political strategy which took many forms but whose practical effect was ultimately to reduce voting by deliberately discouraging or preventing targeted groups of people from exercising their right to vote and thereby influencing the outcome of an election. It was against the letter and spirit of article 38 which guaranteed every citizen the right to make political choices based on universal suffrage.
It had not been shown that, by postponing elections in the named electoral units, IEBC acted in bad faith or was influenced by irrelevant factors and considerations. The postponement was occasioned by a genuine mistake, which could have been avoided had the members and staff of the IEBC been more diligent when they went to inspect the templates in Athens, Greece where the printing of ballot papers was undertaken.
There was no basis for the court to conclude that the postponement of the elections affected voter turnout as a consequence of which the 1st petitioner, alone, as a presidential candidate suffered a disadvantage. The nature of the ballot being an individual decision and secret, there could be other variables to which the turnout in the named units could be attributed. The 2022 General Election recorded one of the lowest turnout since the reintroduction of multi- party political system, some 30 years ago. If there was a low voter turnout, it affected all the six categories of candidates and its explanation lay elsewhere but certainly not a calculated suppression. There was no nexus between the postponement of elections and voter turnout in the affected units, the claim was a red herring. There was no proof that the postponement resulted in voter suppression to the detriment of the 1st petitioner.
The requirement that a person who asserted a fact had to prove it cast the burden upon the 1st petitioner to demonstrate that there were instances of ballot stuffing of such a magnitude as to justify the nullification of the presidential election. Ballot stuffing, which was the illegal addition of extra ballots, was a type of electoral fraud aimed at swinging the results of an election towards a particular direction. Not a single document had been presented by the 1st petitioner to prove systematic ballot stuffing. A figure of 33,208 votes relied on in that claim was based on unproven hypothesis that since the number of votes cast for President was higher than those for the other positions then, without more, it had to follow that there was fraud.
Fraud was a serious criminal offence and had to be proved beyond reasonable doubt. Under section 5(n) of the Election Offences Act, it was an offence for a person to vote more than once in any election. IEBC had proffered a plausible explanation for the vote differential. There were categories of voters who only voted for the President, such as prisoners and Kenyans in the diaspora. There were an insignificant number of stray votes, whose combined effect could not justify nullification of the election.
A general election in Kenya comprised of 6 different and separate elections held concurrently on the same day. Such elections were held by secret ballot and one could not predetermine the voter turnout or how voters would vote in each election. None of the parties had flagged anything so significant that it would have affected the outcome of the presidential election vis vis the other five elections held on that day. There were no unexplained discrepancies between the votes cast for presidential candidates and other elective positions.
Pursuant to article 138(3)(c) of the Constitution, the power to verify and tally presidential election results as received at the National Tallying Centre, vested not in the chairperson of IEBC, but in the Commission itself. The latter carried out the exercise through its secretariat staff, technical personnel, and any other persons hired for that purpose under the oversight and supervision of the chairperson, and other members of the Commission.
The chairperson of the IEBC could not arrogate to himself the power to verify and tally the results of a presidential election, to the exclusion of the other members of the Commission. Under Article 138(10) of the Constitution, although the power to declare the result of a presidential election after verification and tallying, was vested in the chairperson, he did so only as a delegate of the Commission. To the extent that regulation 87(3) of the Elections (General) Regulations purported to vest the power of verifying and tallying presidential election results, as received at the National Tallying Centre, solely on the chairperson to the exclusion of other members of the Commission, the same was contrary to and inconsistent with the provisions of the Constitution.
Apart from their eleventh-hour denunciation of the verification and tallying process, and their averments regarding the conduct of the chairperson, the four Commissioners had not placed before the court, any information or document showing that the elections were either compromised or that the result would have substantially differed from that declared by the chairperson of IEBC. They had not explained why they participated in a verification process when they knew that it was opaque up until the last minute. The 4 Commissioners acknowledged that the entire election had been managed efficiently and credibly. The chairperson did not make matters any better by maintaining a stoic silence even as things appeared to be falling apart. There was a serious malaise in the governance of an institution entrusted with one of the monumental tasks of midwifing our democracy. An institution that needed far-reaching reforms.
To nullify an election on the basis of a last-minute boardroom rapture between the chairperson of the Commission and some of its members in the absence of any evidence of violation of the Constitution and electoral laws; to upset an election in which the people had participated without hindrance, as they made their political choices pursuant to article 38 of the Constitution would be tantamount to subjecting the sovereign will of the Kenyan people to the quorum antics of the IEBC. The court was incapable of such action. The dysfunctionality at the IEBC impugned the state of its corporate governance but did not affect the conduct of the election itself. Notwithstanding the divisions apparent between the chairperson and the 4 Commissioners, IEBC carried out the verification, tallying and declaration of results in accordance with article 138 (3)(c) and (10) of the Constitution.
The case made by the 6th petitioners concerned a data-specific threshold enunciated under article 138(4) of the Constitution without the attainment of which, there could be no declaration. That was the ultimate yardstick for determining the winner in a presidential contest. Rejected votes could not be taken into account when calculating whether a presidential candidate attained 50% +1 of votes cast in accordance with article 138 (4) of the Constitution.
In the case of data-specific electoral requirements (such as those specified in article 138(4) of the Constitution, for an outright win in the presidential election), the party bearing the legal burden of proof had to discharge it beyond any reasonable doubt. The assertion by the 6th petitioner that the percentage voter turnout was predicated on the uncorrected percentage given by the chairperson of IEBC, was negated by evidence adduced to prove the correction. The 6th petitioner based his percentage of voter turnout on the total number of registered voters while the chairperson of IEBC made reference, in the press briefing, to the number of registered voters who were identified through the KIEMS kits, progressively. The rounding off done by IEBC and its chairperson was correct.
The petitioners did not provide a watertight case to warrant the setting aside of the results of the presidential election on the basis of not having met the threshold provided under article 138(4)(a) of the Constitution. The formula predicated on the number of voters identified through the KIEMS kit progressively and used by IEBC and its chairperson to generate a percentage of 64.76% was correct.
The chairperson of IEBC applied the formula in article 138(4) of the Constitution which was:
Total votes cast (less rejected votes)
= 50% +1 vote
Given the numbers that were presented to us by IEBC and its chairperson, that would translate to:
14, 213, 137
+ 1 = 7,106,569
28. 7,106, 569 was less than 7,176,141 which represented the number of votes received by the 1st respondent. On the basis of the above formula and from the numbers provided by IEBC and its chairperson, and the declaration by the chairperson of the President-elect on August 15, 2022, the declared President-elect attained 50%+1 of all the valid votes cast in accordance with article 138(4) of the Constitution. 29. Although the petitioners had provided numerous averments pointing to possible irregularities and illegalities, the pointed illegalities and irregularities were not of such magnitude as to affect the final result of the presidential election.
30. In exercising its jurisdiction pursuant to Article 140 of the Constitution, the Court sat as an election court, with the mandate to determine the validity or otherwise of the election of the President-elect. The jurisdiction of the Court was quite circumscribed in terms of the Orders or reliefs it could grant following the hearing and determination of an Election Petition under Article 140. 30. The Supreme Court could only make the following orders when determining the validity of a presidential election petition under article 140 Constitution:
a. in the event the court determined that the election of the President- elect was invalid, it had to make an order nullifying the election. Consequently, it had also to make an order directing IEBC to hold a fresh election within sixty days after the determination. b. Should the court determine that the election of the President-elect was valid, it was to issue a declaration to that effect. The court would then as a matter of course, make an order dismissing the petition, with or without costs as the case may be. 31. The court could not assume jurisdiction that was beyond the purview of articles 163(3) and 140 of the Constitution. However, nothing stopped the court from issuing orders or reliefs by way of recommendations.
32. Since 2013, the Supreme Court had issued many recommendations arising from the determination of three petitions that challenged the election of the President-elect. The recommendations were meant to improve Kenyas electoral landscape and hence aid in the development of Kenyas democracy. The court had been greatly aided by the contributions of amici curiae. The court placed a heavy premium on the amici briefs that were filed by those it admitted in such capacity.
Youth Advocacy For Africa (YAA) & 7 Others V Independent Electoral And Boundaries Commission & 17 Others (Election Petition E002, E003 & E005 Of  (Consolidated))  KESC 42 (KLR) (Election Petitions) (30 August 2022) (Ruling)
Case Number: Election Petition E002, E003 & E005 of 2022 (Consolidated)
Date Delivered: 30 Aug 2022
Judge: Martha Karambu Koome, Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu
Court: Supreme Court of Kenya
Parties: Youth Advocacy for Africa (YAA) & 7 others v Independent Electoral and Boundaries Commission & 17 others
Citation: Youth Advocacy for Africa (YAA) & 7 others v Independent Electoral and Boundaries Commission & 17 others (Election Petition E002, E003 & E005 of 2022 (Consolidated))  KESC 42 (KLR) (Election Petitions) (30 August 2022) (Ruling)
Court compels IEBC to give access to their servers for confirmation of the information in Form 34C
The petitioners in Presidential Election Petition No. E002 of 2022 (the applicants) filed the instant application in which they sought for the Independent Electoral and Boundaries Commission (IEBC) to be compelled to give the petitioners or any person or expert engaged by IEBC in relation to this petition, the complete unedited soft copy of the Voters Register; to give the petitioners full and unfettered physical and remote access to electronic device(s) used to capture Form 34As and 34Bs on the Kenya Integrated Election Management System (KIEMS) and transmitted to the Constituency Tallying Centre and the National Tallying Centre; to give the applicants full and unfettered physical and remote access to any server(s) at the constituency tallying centre for storing and transmitting voting information and that the servers would be forensically imaged to capture inter alia, metadata such as data files for all Forms 34A and Forms 34B among other orders regarding the technology used in the presidential election that was conducted on August 2022. The petitioners also sought for orders of inspection, scrutiny and recount for various polling stations.
What criteria should courts employ in determining applications for scrutiny and recount of election results?
Whether the Supreme Court in determining the presidential election petition could grant orders to direct the production of contracts with terms of reference between third parties who were not parties to petitions before the court.
Whether an order allowing for the filing of further affidavits arising from the attainment of the information from the scrutiny exercise could issue given the strict timelines applicable to the presidential election petition.
While considering a request for scrutiny of either the forms or the technology used in an election, the request for scrutiny had to be made for a sufficient reason. Any request that would in effect be a fishing exercise to procure fresh evidence not already contained in the petition would be rejected. Any prayer couched in general terms, not pleaded with specificity or such request was impracticable in terms of scope and time would be declined. The narrow timelines granted by the Constitution to hear and determine a presidential election dispute, meant that only reasonable, practical and helpful orders should be issued in that regard.
Subject to section 12 of the Supreme Court Act all of the certified copies of the documents used to declare the results of the presidential election were already in the custody of the court and were available to the parties upon request. The was no reason to grant the prayers to avail the soft copy of the voters register and to order scrutiny of the biometric voter register as the register was already in the public domain. No justification in the context had been given why the same should be provided. The request to access to all KIEMS kits and servers for all Constituency Tallying Centers was unrealistic given the short timelines for the hearing and determination of the presidential election petitions.
The orders sought regarding the technological aspects of the presidential election petitions were not practicable, reasonable and helpful to ensure that the Supreme Court reached a just and fair determination of the petitions. They were couched in general terms and were vague.
There could be possible legal issues that could arise in granting the prayer asking for the terms of reference between Smartmatic International and Local Service Providers. The Supreme Court could not blindly grant orders to direct the production of contracts with terms of reference between third parties who were not parties to the petitions before the court. Smartmatic International was not a party to the proceedings neither were local service providers and to demand that such terms of reference be accessed by the applicants was impractical and may cause unnecessary delay in the hearing and determination of the presidential election petition.
An order allowing for the filing of further affidavits arising from the attainment of the information from the scrutiny exercise, noting the time left for the hearing and determination of the petition from the date of delivery of the instant ruling, would only but delay the proceedings and would occasion prejudice to the respondents who would not be able to respond to the issues raised in the affidavits.