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 34A’s and 34B’s 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.
- Independent Electoral & Boundaries Commission v Maina Kiai & 5 others (Civil Appeal No 105 of 2017;  eKLR) — Explained
- Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others, Presidential Petition No. 1 of 2017; ( eKLR) — Mentioned
- Access to Information Act (No. 31 of 2016) — In general — Cited
- Constitution of Kenya, 2010 (Const2010) — Article 1,2,3,19, 20,22, 23(3); 35; 81; 86;138(1)(c); 140; 159; 258
- Elections Act (No. 24 of 2011) — Section 39,(1)(C); 44 — Interpreted
- Elections (Technology) Regulations 2017 (Act No 24 of 2011 Sub Leg) — Regulation 10,(2) — Interpreted
- Supreme Court Act (No. 7 of 2011) — Section 12, 23, 26 — Interpreted
- Supreme Court (Presidential Election Petition) Rules 2017 (Act No 24 of 2011 Sub Leg) — Rule 3,4,17,18 — Interpreted