i. Analysis of evidence
126.On this issue, the 1st petitioner’s case was that there was deliberate manipulation and tampering with Forms 34A as demonstrated in their affidavits to the effect that votes were being deducted from the 1st petitioner and added to the 1st respondent. The respondents in answer, have urged the point that none of the Forms 34A transmitted to IEBC’s Public Portal was interfered with or manipulated. They also urged by way of several witness affidavits that the Forms 34A signed at the polling stations and issued to the agents were identical to the Forms on IEBC’s Public Portal and delivered to the NTC. They all asserted that in any event, going by the Maina Kiai Case, IEBC used the original physical Forms 34A to tally, verify and declare the Presidential Election results.
127.The Court in its Ruling delivered on August 30, 2022, granted the following Orders on scrutiny:
128.The Registrar’s Report confirmed that in compliance with Order 5 of the Ruling, (above), scrutiny was conducted on the ballot boxes from 47 polling stations. A further scrutiny was carried out in respect of 41 polling stations pursuant to Order 7 (above). The Report noted that the alleged polling station called Tinderet Conmo in Nandi County did not exist although the 1st petitioner alleged infractions in that polling station.
129.On the outcome of the scrutiny and verification of votes cast and garnered by each of the Presidential candidates per polling station, save for four polling stations, the Report indicates that there was no variance between results as captured in Form 34A and recount.
130.The four polling stations were as follows; Chepkutum Primary School 2 of 3, where one vote for the 1st petitioner was counted for the 1st respondent. In Kapsuser Primary School 2 of 3 there was a computation error noted on the total valid votes cast, but the votes in respect of each candidate remained the same. In Sinderet Primary School 1 of 2, the ballot box did not contain Form 34A. However, the recount of votes matched what was captured in Form 34C. In Nandi Hills Primary School 2 of 4 there was an error in the votes indicated on Form 34A where the 1st petitioner received one vote less.
131.Before we make our determination whether there were significant differences between Forms 34A uploaded on the Public Portal and the physical Forms 34A delivered to the NTC and the Forms 34A issued to party agents, we need to examine the evidence presented by IEBC in rebuttal.
132.Like in the previous grounds, IEBC and its Chairperson maintained that they placed sufficient safeguards to ensure that both the RTS and the KIEMS kits were secure enough to prevent any intrusion by unauthorized third parties. It explained the nature of the copies of the Forms issued to the agents vis-à-vis those appearing on IEBC Public Portal. We also take note of the evidence produced by IEBC in the form of numerous affidavits by the Constituency Returning Officers and Presiding Officers dismissing the petitioners’ contention that the Forms 34A appearing on IEBC’s Public Portal were different from the physical Forms submitted to the NTC.
133.Further, we have considered the 1st and 2nd respondents’ witness affidavit sworn by John Macharia Wangui, their agent at Kabete Vetlab Primary School polling station 9 of 12 in Kitisuru Ward, Westlands Constituency Nairobi County who corroborated the evidence of IEBC’s witnesses. Finally, there is the affidavit of Eric Atuma sworn on 26th August, 2022 filed by counsel for the 1st and 2nd respondents, who deponed that he was the ODM/Azimio agent at the St. Martin’s School Kibarage polling station 2 of 7 in Kitisuru Ward, Westlands Constituency, Nairobi County; that as the agent who was present and signed the Form 34A at the polling station, the Form 34A annexed to Arnold Oginga’s affidavit and purported to be from his polling station was not the electronic copy that he submitted to the ODM/Azimio party. He produced the true copy that he submitted to the party and which he pointed out was in consonance with what was published on IEBC’s Public Portal.
134.In light of all the aforementioned affidavits, and the totality of the evidence, we find no credible evidence to support the 1st petitioner’s claim that Forms 34A presented to agents differed from those uploaded to the Public Portal. The Report by the Registrar’s Report confirmed the authenticity of the original Forms in the sampled polling stations. There were no significant differences between the Forms 34A uploaded on the Public Portal and the physical Forms 34A delivered to the NTC that would have affected the overall outcome of the Presidential Election.
135.The affidavits of Celestine Anyango Opiyo and Arnold Ochieng Oginga, while containing sensational information, were not credible as the Registrar’s Report confirmed evidence to the contrary. 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 evidence of Celestine Opiyo and Arnold Oginga sworn in their respective affidavits was not only inadmissible, but was also unacceptable. It has been established that none of the agents on whose behalf the Forms were being presented swore any affidavit; that there is nothing to show that they had instructed both Celestine Opiyo and Arnold Oginga to act for them. Yet the two had gone ahead to depone on matters that were not within their knowledge. It is worth noting that the two are Advocates of the High Court and are on record as representing the 1st petitioner in the Petition before us.
136.This Court cannot countenance this type of conduct on the part of counsel who are officers of the Court. Though it is elementary learning, it bears repeating that affidavits filed in Court must deal only with facts which a deponent can prove of his own knowledge and as a general rule, counsel are not permitted to swear affidavits on behalf of their clients in contentious matters, like the one before us, because they run the risk of unknowingly swearing to falsehoods and may also be liable to cross-examination to prove the matters deponed to.
137.In stating so, we echo the words of Ringera, J. in Kisya Investment Limited & Others v. Kenya Finance Corporation Ltd H.C.C.C. NO 3504 of 1993 (Unreported) that:
138.We must also remind counsel who appear before this Court, or indeed before any other court, or tribunal of the provisions of Sections 113 and 114 of the Penal Code, Cap. 63 Laws of Kenya, that swearing to falsehoods is a criminal offence, and that it is also an offence to present misleading or fabricated evidence in any judicial proceedings. Section 114 of the Penal Code states that:
139.One of the most serious losses an advocate may ever suffer is the loss of trust of Judges for a long time. Such conduct amounts to interference with the proper administration of justice. Further, it puts counsel in jeopardy of being found in contempt of court. This Court in the case of Republic v. Ahmad Abolfathi Mohammed & Another, SC Petition No. 39 of 2018;  eKLR underscored the vital role that advocates play in assisting the Court to effectively carry out its duty of administering justice. We can do no more than reiterate the words of the Court as follows:(6)On admission to the Bar, all Advocates make an affirmation, as Officers of the Court. Section 15(4) of the Advocates Act provides that an aspiring Advocate:(7)The status of an Advocate as an Officer of the Court, is expressly provided for in Section 55 of the Advocates Act. An Advocate, consequently, bears an obligation to promote the cause of justice, and the due functioning of the constitutionally-established judicial process ensuring that the judicial system functions efficiently, effectively, and in a respectable manner. In that context, Advocates bear the ethical duty of telling the truth in Court, while desisting from any negative conduct, such as dishonesty or discourtesy. The overriding duty of the Advocate before the Court, is to promote the interests of justice, and of motions established for the delivery and sustenance of the cause of justice.…..(11)It is clear, therefore, that Advocates, while discharging their duties, are under obligation to observe rules of professionalism, and in that behalf, they are to be guided by the fundamental values of integrity.” [Emphasis added]
140.We now turn to the sad issue of affidavits containing misleading or fabricated evidence and specifically to the affidavit of John Mark Githongo, to which reference has been made. The 1st petitioner, through Githongo’s affidavit contended that they had direct incriminating evidence from a hacker contracted by the 1st respondent’s agent, Dennis Itumbi, detailing how he and others were tasked to intercept and manipulate Forms 34A transmitted from the KIEMS kits and thereafter transmit the altered Forms to IEBC’s portal. John Githongo produced video evidence as well as transcription of the interview he had with a young man whose face and voice are both obscured. He also annexed purported digital logs and digital footprints showing the transaction ID, time stamps, generic user names, IP addresses and functions of IEBC.
141.It was on the basis of these logs that the 1st petitioner’s witness, Benson Wesonga, swore three affidavits on 20th and August 21, 2022 wherein he claimed to have carried out an analysis of the same. He contended that he found evidence of access being granted to users with permissions to read, write, modify or edit and delete documents. He contends that from the screen grab, a user with a pseudo name or account email@example.com deleted and uploaded certain files for polling stations onto the server repository, thereby compromising the quality of the system.
142.The 1st and 2nd respondents through the affidavits of Dennis Itumbi, Davis Chirchir, Eric Mulei, Raymond Kiprotich dismissed the logs produced and argued that they were not genuinely sourced from the server as alleged but rather were the same as the ones posted by Prof. Makau Mutua on twitter relating to the 2017 Presidential Election Petition.
143.In light of that response, John Githongo swore a further affidavit on August 28, 2022, withdrawing the purported logs contending that they did not emanate from himself or the 1st petitioner. He added that the same was only meant for purpose of demonstration. Obviously, neither the withdrawal of the logs nor the explanation thereof are acceptable and amount to outright dishonesty. It was also a radical departure from the pleadings of the 1st petitioner and completely altered the substance of their Petition fatally. A party or witness cannot approbate and reprobate, more so under oath.
144.Without saying more, we dismiss the contents of the affidavit of John Mark Githongo, which may contain forgeries, for not meeting the evidential threshold. It was incredible and contained no more than hearsay evidence. We further note that 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. In fact, his two affidavits amount to double hearsay, and incapable of being proved at each layer.
145.In the aforesaid video interview by John Githongo with the young self- confessed hacker, the latter asserted how he and others were tasked and did intercept and manipulate Forms 34A transmitted from the KIEMS kits in favour of the 1st respondent and thereafter transmitted the altered Forms to IEBC’s portal; that this was made possible through collusion with IEBC, its Chairperson, IEBC’s ICT Department and Smartmatic; and that they were enabled to access the back- end of IEBC server. Of interest is paragraph 13 of the affidavit of Githongo of August 21, 2022 where the young man confirmed that his team was also able to manipulate the gubernatorial results in some key Counties, as well as those for the Presidential Election. It is common knowledge that Governors’ results are not transmitted electronically, in the same manner as those of Presidential candidates. That statement alone should have been sufficient to cast serious doubts on the credibility of that witness. It was therefore improper for Githongo to accept such evidence and to present it to this Court as the linchpin for the nullification of the results of the Presidential Election, and even worse, go ahead to swear that those facts were, to his knowledge, true.
146.Although John Githongo withdrew his earlier averments, this does not prevent the Court from examining the same. In truth, his affidavit together with those of Celestine Anyango, Arnold Oginga and Benson Wesonga were the anchors upon which the 1st petitioner’s case was predicated. Without this foundation, the 1st petitioner’s case on the instant issue must fail.
147.The 1st petitioner had also alleged through forensic reports attached to the affidavits of Martin Papa and Susan Wambugu that there was evidence of erasures, alteration and falsification on the original Forms 34A and the Forms 34A uploaded on the online Public Portal. It was further stated that, handwriting on some of the Forms 34A appear to have had a common origin.
148.We are convinced that the original Forms 34A were authenticated by their unique security features, including UV sensitive security features; Microtext with the words ‘Independent Electoral and Boundaries Commission’, tapered serialization, anti-copy features and water mark that enhanced the security of the information management environment therefore eliminating and protecting the system against the possibility by any unauthorized third party.
149.Again, as we have explained, in the Registrar’s Report, it is noted that after the exercise, the physical and original Forms 34A were the same as those on the online Public Portal. In addition, the Forms 34A were carbonated to ensure that only one Form was filled by the Presiding Officers and acted as a measure to help authenticate the results at the polling stations before transmission.
150.Moreover, expert opinion, as a general rule is not binding on the Court. It is only an opinion. In reaching its determination, the Court is entitled to consider other relevant facts and the evidence as a whole. For reasons given above and having found that the Forms submitted to the experts were not authentic, we find that the forensic reports cannot be used as evidence and basis that the Forms 34A were tampered with.
151.We must now turn to another sensational piece of evidence produced on behalf of the 1st petitioner. Julie Soweto, Advocate, took this Court through a demonstration of how the Forms 34A were interfered with and graphically pointed to Gacharaigu Primary School polling station, submitting that IEBC’s stamp on the Form 34A on the portal gave the impression that it had been super-imposed over another stamp. Further, she also demonstrated to the Court that at the top left hand corner, the name of Jose Camargo appeared, an indication to her, that he had access and opportunity to interfere with the Forms 34A uploaded on the system. Also, from the same polling station, she demonstrated that the Form 34A had laid over a document written ‘Jose Camargo’, as one of the Venezuelans claimed to have interfered with the elections.
152.Ms. Soweto again pointed out to the Court that Thunguma Primary School in Nyeri Constituency polling station and the polling station at Psongoywo Primary School had the same serial number on the KIEMS kit with the same ID number which was F230450M00204133, the only difference being that the KIEMS kit from Thunguma Primary School transmitted the Form 34A on August 9, 2022, at 2349 hours while the KIEMS kit from Psongoywo primary school did so on the same date, August 9, 2022, but at 1956 hours, despite the two polling stations being located hundreds of miles apart. It was counsel’s argument in this context that, this incident disproved IEBC’s claim that each Form 34A could only be transmitted on its own unique KIEMS kit with its own unique IP address. This evidence, in Ms. Soweto’s opinion substantiated her claim that the Forms 34A on the online Public Portal were different from the physical Forms 34A.
153.Learned Counsel Mr. Mahat, for IEBC disputed this narrative by availing to the Court the original Form 34A from Gacharaigu Primary School and explained that Jose Camargo’s name was on the register of the QR code that had been printed by Smartmatic in his name; and that the image was an overlay on the Form 34A. He submitted that, from that understanding, the Presiding Officer took the picture of the Form 34A above the QR register which had the name ‘Jose Camargo’. The name was not on the Form 34A or any election material. The original Form, that was being impugned, was produced before the Court by IEBC and we were able to determine that there was no name of ‘Jose Camargo’ on the same. We therefore find the explanation of the overly credible, and a convincing rebuttal to Ms. Soweto’s claim on the issue. Mr. Mahat however admitted that, the two KIEMS kits had the same serial number as alleged but that they had different IP addresses from the two different polling stations, and therefore, had distinct identifiers. Similarity in serial numbers, he said, could only be attributed to a manufacturer’s fault. We find the reasons for the irregularity plausible. In any event, it has not been established that these minor infractions and errors were of a magnitude that would lead to a different result from that declared by IEBC.
154.Therefore, to the question whether there was a difference between Forms 34A uploaded on IEBC’s Public Portal, those received at the NTC, and those issued to the candidates’ agents at the polling stations, we have found none.