Please Wait. Searching ...
Odinga & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition 1 of 2017) [2017] KESC 31 (KLR) (Election Petitions) (28 August 2017) (Ruling)
Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR
Neutral citation:
[2017] KESC 31 (KLR)
Republic of Kenya
Election Petition 1 of 2017
DK Maraga, CJ, PM Mwilu, DCJ & V-P, MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
August 28, 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
H.E Uhuru Muigai Kenyatta
3rd Respondent
Ruling
A. Introduction
1.The present petition was filed on August 18, 2017. At paragraph 27 thereof, the petitioners contend that
2.At paragraph 28, they further contend that
3.At paragraphs 21.2.1 they also claim that the data and information recorded in Forms 34A at the individual polling stations were not accurately and transparently entered into the KIEMS kit at the individual polling stations and specifically that in
4.As regards Forms 34B, it is the petitioners’ contention that the results declared in those forms were inconsistent with the results in Forms 34A which were the primary documents from which the former are required by law to be created. They plead in that regard thatwere allowed into the vote tally without verification at all.
5.It is therefore their prayer in the petition in the above context, that the following orders ought to be granted and relevant to the present ruling, namely:
6.Subsequent to the filing of the petition they filed a notice of motion dated August 25, 2017 and premised on articles 19, 20, 22, 23(3), 35, 81, 86, 140, 159 and 258 of the Constitution, Section 39 and 44 of the Elections Act, Section 27 of the Independent Electoral and Boundaries Commission Act, sections 12, 23 and 26 of the Supreme Court Act, rule 18 of the Supreme Court (Presidential Election Petition) Rules, Access to Information Act and the Elections (Technology) Regulations. In the said motion they seek the following orders:
The Petitioner’s case
7.The Motion before us is supported by the affidavits of Raila Amolo Odinga, Dr Edgar Ouko Otumba, Omar Yusuf Mohamed and Norman Magaya. It is their contention that, while the 1st respondent was obligated by articles 81 and 86 of the Constitution as well as section 39(1C) of the Elections Act to transmit election results electronically, the Elections Technology System was
8.They also contend that prior to August 8, 2017, the 1st respondent deliberately refused to respond to or accede to numerous requests that were made by NASA through its Chief Executive Officer, Mr Magaya, and its agents. It is their further contention that the information and data that is sought is critical to demonstrate that the 1st respondent did not conduct a free, fair, secure, verifiable, accountable and transparent election.
9.The petitioners, aware of the limited time this court has to determine the Presidential Election Petition before it, pray that the orders sought should be granted expeditiously as no prejudice would be caused to the Respondents in granting them.
10.In addition to the above, it is the petitioners’ case that based on Dr Otumba’s analysis and hypotheses of the Presidential Election contained in his report dated August 17, 2017, the results declared by the 2nd respondent, it is impossible to verify individual results obtained from any individual polling station and the systematic data, with no characteristic of randomness, indicated a programmed data transmission system that was symptomatic of unreal and cooked figures hence the need for the orders sought in the notice of motion.
11.Regarding spoilt and rejected votes, it is the petitioners’ case that an analysis of those votes shows that 395,510 such votes are unaccounted for and are indicative of illegal manipulation as well as alteration of rejected and spoilt votes during tallying of all votes.
12.That therefore a scrutiny of the IEBC System, logs and returns is imperative and in submissions, the petitioners have argued that the Presidential Election Results were made in absolute breach of/and non-compliance with the mandatory provisions of Sections 39(1C) and 44 of the Elections Act as well as the Elections (Technology) Regulations, 2017. In that regard, they contend that the KIEMS was designed in a manner to ensure that text results could not be transmitted without images on the prescribed form embodying the totality of election results in every polling station. The end result, in their view, was that the evidence adduced, points to indicators of interference with the KIEMS system, fraud in the filing of Forms 34A, 34B and 34C and the KIEMS system was not secured as by law required. It is their other view that the said system was breached and/or deliberately compromised and used in a manner not intended in law.
13.Relying on the decisions of this court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others Petition No 2B of 2014; [2014] eKLR and Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others, Petition No 23 of 2014; [2015] eKLR, they submit that they are entitled to a scrutiny under section 82(1) of the Elections Act and that based on the evidence in the affidavits in support of the application they have established sufficient reasons for such an order.
14.Relying further on regulation 15 of the Elections (Technology) Regulations, 2017, the petitioners submit that the computer and system logs requested are permanent and leave a perpetual trail that is relevant in determining some of the issues raised in the petition. They have also relied on sections 2 and 4 of the Access to Information Act (No 31 of 2016) to make the point that they are entitled to the information sought as a matter of right and that this court should invoke both article 50 of the Constitution (on the right to a fair trial) and article 259 thereof (construing and interpreting the Constitution) and grant the orders sought.
1st and 2nd Respondents’ Case
15.In response to the application, the 1st respondent filed a replying affidavit sworn on August 26, 2017 by Mr Moses Kipkogei, its Legal Officer. In the said affidavit, it is the 1st respondent’s case that:i.the application seeks to expand the petition in an unconstitutional manner in that it seeks to introduce new evidence after the limitation period established by article 140 of the Constitution had lapsed;ii.no basis has been laid in law for the grant of scrutiny under Section 82 of the Elections Act, No 24 of 2011;iii.the applicants are foraging, in an unconstitutional manner, for evidence which should have otherwise been sought prior to the filing of the petition;iv.grant of the information sought is likely to compromise the integrity and security of the information technology systems; andv.compliance with the orders sought would be onerous in view of the strict timelines prescribed under the Constitution for hearing and determination of the petition; and that regulation 15 of the Elections (Technology) Regulations, 2017 provides an avenue for obtaining the information sought which regulation has not been complied with.
16.In submissions filed contemporaneously with the application, the 1st Respondent submitted that this court should be persuaded by the decision of the Court of Appeal in Nicholas Salat v Wilfred Rotich Lesan & others, Civil Appeal No 228 of 2013 where by a majority decision of the court, it was held that where no sufficient basis for a scrutiny had been laid, no such order should be granted.
17.They also submitted that Onyancha, J in Hassan Mohamed Hassan & another v IEBC & 2 others, HC at Garissa Election Petition No 6 of 2013, had set out the law as regards scrutiny and held that a sufficient reason had to be given on why a scrutiny should be ordered.
18.The 1st respondent in addition submitted that reading section 82 of the Elections Act and rule 33 of the Election Petition Rules 2013, which set out the principles to be applied in any application for scrutiny, the applicants have been unable to show that they are deserving of the said order taking into account the strict timelines for hearing and determining Presidential Election Petitions in Kenya.
19.Lastly, and regarding regulation 15 of the Elections (Technology) Regulations 2017, the 1st respondent stated that the application before us falls outside the said regulation and should not be granted. Instead, the same should be dismissed with costs.
3rd Respondent’s Case
20.In response to the motion, the 3rd respondent filed an affidavit in reply sworn on August 25, 2017 by Brian Gichana Omwenga, a technology advisor employed by the Jubilee Party and in it, he deponed that the application is misguided and devoid of merit because first, while the 1st petitioner places great emphasis onthe Constitution nor any written law do not impose an obligation on the 1st Respondent tosave that whatever system is used must be simple, accurate, verifiable, accountable and transparent.
21.Second, and as a corollary to the above, section 44A of the Elections Act grants the 1st respondent discretion to use a complementary mechanism where
22.Third, that the election of August 8, 2017 was conducted within the law as casting of ballots, the counting, announcement and transmission of the votes and results were undertaken in the presence of agents of the petitioners, a fact confirmed by independent observers such as Elections Observation Group (ELOG).
23.Fourth, that the streamed results were sent electronically and following the Elections (General) Regulations, 2017 as well as the directions by the Court of Appeal in the case of the Independent Electoral & Boundaries Commission (IEBC) v Maina Kiai & 5 others, Civil Appeal No 105 of 2017; [2017] eKLR and that the results in all 290 Constituencies were conclusively tallied, collated and announced.
24.Fifth, that there was no legal requirement that the 1st respondent ought to avail Forms 34A to any presidential candidate for verification.
25Sixth, that the 1st Respondent does not have telecommunication facilities of its own and relied on Safaricom Ltd, Airtel Kenya Ltd and Telkom Kenya Ltd to provide transmission services and that regulations 20 and 24 of the Elections (Technology) Regulations while obligating the service providers to provide technological services as requested by the 1st Respondent, technology is nonetheless susceptible to failure, sabotage or human error.
26.Seven, that for the above reasons, section 44A of the Elections Act was introduced by the Election Laws (Amendment) Act, 2017, obligating the 1st respondent to put in place a complementary mechanism for both identification of voters and transmission of election results to ensure compliance with article 38 of the Constitution, which mechanism it put in place; an action confirmed and upheld by both the High Court HC Constitution Petition No 328 of 2017, National Super Alliance Kenya v Independent Electoral & Boundaries Commission & 2 others. That decision was later upheld at the Court of Appeal.
27.Ninth, pursuant to regulation 21 of the Elections (Technology) Regulations, the 1st respondent posted to the public a list of 11,000 polling stations without 3G coverage and this was a matter well within the petitioners’ knowledge. In addition, that in such situations, the Forms 34A would be ferried physically to the Constituency Tallying Centres or transmitted electronically in places where there was 3G network coverage.
28.Tenth, that even if the petitioners were to be granted access to the information and equipment that they were seeking, the 1st respondent would require 14 days to do so as the computer logs for example run into approximately 100,000 pages.
29Lastly, that the application and prayer for leave to file additional affidavits is a fishing exercise to help the petitioners engage in a wild goose chase for information only meant to affirm their bias and conspiracy theories and that their hacking of systems claims have been discredited by experts. That, therefore, the application ought to be dismissed with costs.
B. Analysis
30.Having read the notice of motion and responses to it and having heard the submissions by counsel representing the parties herein, the question that we must answer is whether the petitioners are entitled to the prayers in the said motion. In answering that question we note that as framed and argued, the application seeks three kinds of prayers:i.access to information relating to the hardware and software used in the conduct of the Presidential Election and particularly in transmission of results.ii.access to and scrutiny of certified copies of Forms 34A, 34B and 34C.iii.leave to file further affidavits.
31.We shall in that context address the second issue as the first and peripherally address the right to information generally as we see that implicit in scrutiny is also the fact that the information sought is first granted before any scrutiny can be initiated.
32.We shall in the above regard begin by addressing the law regarding scrutiny and in that regard, the right to scrutiny of votes specifically and generally as well as and recount of votes in an election petition is anchored on section 82(1) of the Elections Act (Act No 24 of 2011) and rule 29 of the Elections (Parliamentary and County Elections) Petition Rules, 2017. The Presidential Election Petition Rules, 2017 are however silent on the issue of scrutiny.
33.Section 82 of Elections Act thus reads as follows:
34On the other hand and by way of comparison only, rule 29 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 provides:
35.In addition to the above statutory provisions, there has been consistent jurisprudence from our courts, on how the law on scrutiny should be applied in electoral matters. We will analyse some of the decisions as here below:
i. High Court
36.In the case of Hassan Mohamed Hassan & another v IEBC & 2 others Petition 6 of 2013; [2013] eKLR, the petitioner had sought scrutiny of votes in 15 polling stations. The court (Onyancha J) in dismissing the application pronounced itself as follows:
37.Further, in the case of Philip Mukwe Wasike v James Lusweti Mukwe & 2 others, Bungoma High Court Petition No 5 of 2013; [2013] eKLR, the learned Judge (Omondi J) observed that:
38.Further elaboration on the issue of scrutiny was provided in the case of Philip Osore Ogutu v Michael Aringo & 2 others, Busia High Court Petition No 1 of 2013 wherein the Petitioner had sought scrutiny of votes in 15 polling stations during the pre-trial conference. Upon making a formal application, Tuiyott J after setting out the law regarding scrutiny, observed that as pertaining to the timing of the application, it would be upon the party seeking scrutiny to choose when to approach the court. He thus observed [paragraph 18]:
39.The learned judge further observed [paragraph 20]:
40.We also note that in the case of Jacob Mwirigi Muthuri v John Mbaabu Murithi & 2 others, High Court at Meru, Petition No 2 of 2013; [2013] eKLR, the Court (Lesiit, J) held that [paragraph 28 & 29]:
41.Similar sentiments as above were expressed by Kimaru, J in the case of Rishad HA Amana v IEBC & 2 others, High Court at Malindi Petition No 6 of 2013; [2013] eKLR where he emphasized that [paragraph 34]:
ii. Court of Appeal
42.In the case of Dickson Mwenda Githinji v Gatirau Peter Munya & 2 others, Civil Appeal No 38 of 2013; [2014] eKLR, the Court of Appeal took the position that [paragraph 148]:
43.On appeal to the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others Petition No 2B of 2014; [2014] eKLR the Supreme Court in disagreeing with the above holding of the Court of Appeal, held as follows [paragraph 157]:
44.In its further elaboration, the Supreme Court opined [paragraph 159]:
iii. Supreme Court
45.In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra), this court set out the following guiding principles with respect to scrutiny and recount of votes in an election petition. At paragraph 153, the court pronounced itself as follows:
46.In the case of Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others, Petition No 23 of 2014; [2015] eKLR this court then answered the question whether the law on scrutiny and recount was properly applied by the High Court and the Court of Appeal. Upon analyzing certain specific authorities, the court noted as follows [paragraph 52]:
47.The court had earlier settled the law on the matter in the case of Nathif Jama Adama v Abdikhaim Osman Mohamed & 3 others Petition No 13 of 2014; [2014] eKLR, where it held as follows (paragraph 75):
48.The court went ahead and pronounced itself as follows [paragraph 76]:
49.We further note that the court in the case of Raila Odinga & 5 others v Independent Electoral & Boundaries Commission & 3 others, Petitions No 3, 4 & 5 of 2013 (Consolidated), ordered a scrutiny of the following forms: all Form 34 which were used by the IEBC in tallying the presidential votes from each of the 33400 polling stations including the Forms 34 used by IEBC in tallying the diaspora votes and all Forms 36 which were used by IEBC in aggregating the tallies of presidential votes from all Forms 34. In making the orders, the Supreme Court elaborated that scrutiny would serve the following aims:
50.When giving its decision, the court explained that the reason it ordered for a suo motu scrutiny was so that it could understand better the vital details of the electoral process, and to gain impressions on the integrity thereof.
iv. Comparative Analysis
51.In the case of Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & anr, Civil Appeal Nos 5710-5711 of 2012; [2014] 2 SCR the Supreme Court of India held that [paragraph 8]:
52.Further, the court went on and observed that:
53.Although the above case relates to the issue of recount of votes, we find the principles highlighted therein relevant in determining the basis under which a court can order scrutiny. Indeed, comparative jurisprudence from the already reviewed Kenyan cases, aligns with the said holding.
What of the right to access information? What is the law governing the said right?
54.The right of access to information is provided for in various legal instruments as hereunder:Article 35 of the Constitution provides that:1.Every citizen has the right of access to??a.Information held by the State; andb.Information held by another person and required for the exercise or protection of any right or fundamental freedom.2.Every person has the right to the correction or deletion of untrue or misleading information that affects the person.3.The State shall publish and publicise any important information affecting the nation.
55.Further, section 4 of the Access to Information Act, 2016 (No 31 of 2016) provides:
56.The Access to Information Act, also defines the term ‘information’ to include all records held by a public entity or a private body, regardless of the form in which the information is stored, its source or the date of production.
57.In addition, section 27 of the Independent Elections and Boundaries Commission Act, 2011 (No 9 of 2011) provides:
58.Further, the Elections (Technology) Regulations, 2017 provides for information security and data storage. In this regard, Regulations 15, 16 and 17 provide:
59.Applying law and the principles relating to scrutiny as well as and the law on access to information to the present application, there is no doubt that the petitioners have signalled their intention to seek scrutiny and we have in that regard set out the specific parts of the Petition in which the issue of scrutiny has been pleaded as well as the kind of information they intend to access. They have also set out the parameters of the intended scrutiny in the petition namely, all rejected votes and spoilt votes, the returns of the Presidential Election including but not limited to Forms 34A, 34B and 34C, and the KIEMS Kit, the server(s) and website/portal.
60.At the hearing of the application, a question was posed by the court as to the efficacy of a scrutiny of all the documents and equipment listed in the application taking into account the timelines for determining a Presidential Election dispute. It was the petitioners’ counsel’s position that the whole exercise involving both access to the Forms and technology should not take more than a few hours. Counsel for the 1st respondent on the other hand stated that the access to Forms 34A and 34B may be granted and a report generated by the Registrar of this court within a day. Indeed, it was counsel’s position that the 1st respondent would avail all the original Forms 34A and Form 34B, as requested by the petitioners, as long as the exercise that would ensue thereafter would be supervised by the court.
61.Counsel for the 2nd respondent on his part stated that some of the prayers sought by the petitioners would be impossible to implement. As a way of example, he stated that the KIEMS devices that were being sought, are kept in the respective constituencies and hence it would be impracticable to retrieve them within a short time for purposes of access by the petitioners. Furthermore, counsel also urged that if the court were to allow the petitioners or any other person access to the KIEMS system as pleaded, the Commission would require to put in place a back-up system in order to safeguard the information stored therein, which system would take very long to set up. In addition, the Commission would also need to test the forensic tools that are to be used by the Petitioners in order to ensure that they are compatible with the system. We also note that counsel for the 1st, 2nd and 3rd respondents cautioned that any meaningful access to the software would take at the very least 3 weeks.
62.Having addressed our minds to the above issues, it is our view that first, we note that as correctly argued by counsel for the 3rd respondent, a party must be bound by its pleadings and secondly, any scrutiny of either the Forms or the technology must be made for a sufficient reason. Any prayer in the application that would seem to be an expansion of the case for the Petitioners or which would in effect be a fishing exercise to procure fresh evidence not already contained in the petition would and must be rejected.
63.In the above regard, and noting the submissions by counsel for the 1st respondent regarding access to Forms 34A and 34B prayers 5 and 6 of the application read as follows:
64.In submissions before us, Mr Muite, learned Senior Counsel on behalf of the 1st respondent, stated that his client had no objection to access being granted in the above terms and in such other terms as the court may determine. Counsel for the petitioners did not address this apparent concession but counsel for the 3rd respondent partly addressed the issue and conceded to a limited and programmed access to information contained in Forms 34A and 34B.
65.On our part, we see no reason to deny the said prayers more so when the 1st respondent has assured the court that any report on the access to and scrutiny of the Forms 34A and 34B would be filed in court within 48 hours of any such order by this court and we shall therefore make the necessary orders at the end of this ruling.
66.Regarding prayers 3 and 4 of the application, on the technological aspects of the election, noting the limited time that this court has to hear and determine the petition challenging the Presidential Election and noting the need to ensure that only those orders that are practicable, reasonable and helpful in reaching a just and fair determination of the petition should be granted, we shall invoke that criteria in addressing the said prayers. We also particularly note the petitioners’ apprehension that the physical Forms 34A and 34B produced in court by the 1st respondent may not necessarily contain the results that were electronically transmitted and hence the request to access the IEBC’s system in order to confirm the validity of the information contained therein. We further take into account the fact that our electoral system is partly electronic by its nature and hence the role played by technology in this regard cannot be completely ignored. Consequently, we hereby analyze the merit of each of the Petitioners prayers as hereunder.
67.With regard to prayer 3 specifically, some of the actions for which access is sought have the potential of compromising the integrity and security of the 1st Respondent’s electoral technological system and of individuals persons which, if granted, it is likely that the future use of the system may be compromised and therefore it is important to ensure that there is absolute confidentiality of passwords and usernames, locations of servers, identity of password holders, IP addresses and software running applications inter alia.
68.Prayer 3 further seeks access and supply of a large number of software and hardware but in our view, there are possible security and software integrity issues that militate against a blanket grant of all the orders sought therein. Some of the orders sought also go outside the relevance and purview of the petitioners’ case. Consequently, any order granted with respect to this prayer must be practical, timeous and relevant to the issues in contest. We shall at the end of this Ruling therefore grant orders of access and supply of information that meet the above criteria and we are confident that the said information will also assist the court reach a fair decision in the petition and without jeopardizing or compromising any party’s stated position in it.
69.Regarding prayer 3(a), the same is impractical and difficult to grant because Safron Identity and Security, it was submitted by counsel for the 1st and 3rd respondents, is a soft ware company based in France and not being party to these proceedings, to demand that “persons and systems” related to it should be accessed by the Petitioners is impractical and may unnecessarily delay the hearing and determination of the petition.
70.Regarding prayer 7 on the filing of further affidavits arising from the above information being obtained, noting the time left for hearing and determination of the petition (less than 4 days), such an order would only but delay the proceedings and we see prejudice if the respondents would not be able to respond to the issues raised therein. That prayer is therefore disallowed.
71.Having so held, one aspect of the petition and application require addressing at this stage. It has been the petitioners claim in pleadings that during the Presidential Election, Forms 34A were not captured, stored and transmitted in the expected timeframe, a claim partly raised in prayer 3(g) of the application. In that context, we hereby order that the 1st respondent shall supply to the petitioner and 3rd respondent for their scrutiny scanned and transmitted copies of Forms 34A and 34B forthwith.
C. Final Orders
72.Having so held, the final 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.Certified copies of certificates of Penetration Tests conducted on the IEBC Election Technology System prior to and during the 2017 General and Presidential Election including:(i)Certified copies of all reports prepared pursuant to regulation 10 of the Elections (Technology) Regulations , 2017; and(ii)Certified copies of certificate(s) by a professional(s) prepared pursuant to regulation 10(2) of the Elections (Technology) Regulations, 2017i.Specific GPRS location of each KIEMS Kit used during the presidential election for the period between and including August 5, 2017 and August 11, 2017.j.Certified 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:(i)List of the technical partners;(ii)Kind of access they had; and(iii)List of APIs for exchange of data with the partnersm.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 August 5, 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.Certified photocopies of the original Forms 34A’s 34B’s and 34Cs prepared at and obtained from the polling stations by Presiding Officers and used to generate the final 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 officers and staff as she may determine shall supervise access to the certified 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 filed by the Registrar by Tuesday, August 29, 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 Affidavit sworn on August 23, 2017;2.688 polling stations as deponed to at paragraph 15 of Omar Yusuf Mohammed affidavit sworn on August 24, 2017;3.14,078 polling stations as deponed at paragraph 70 of Dr Nyangasi Oduwo’s affidavit dated August 18, 2017iii.An ICT officer designated by this court from among its ICT staff 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 filed by the said officer and experts by 5.00 pm on Tuesday, August 29, 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 officer to ensure expeditious conclusion of the above exercise.v.There shall be no order as to costs.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF AUGUST, 2017.. …………………………………………….DK MARAGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT.. ……………………………………………PM MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT…………………………………………MK IBRAHIMJUSTICE OF THE SUPREME COURT. …………………………………………….JB OJWANGJUSTICE OF THE SUPREME COURT. ……………………………………………..SC WANJALAJUSTICE OF THE SUPREME COURT. …………………………………………….SN NDUNG’UJUSTICE OF THE SUPREME COURT. …………………………………………….I LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the original.REGISTRARSUPREME COURT OF KENYA
