1

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA

PRESIDENTIAL ELECTION PETITION NO. 1 OF 2017

H.E RAILA ODINGA……………………………………..……..1ST PETITIONER

H.E STEPHEN KALONZO MUSYOKA…………...……….....2ND PETITIONER

AND

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION…………………….........1ST RESPONDENT

THE CHAIRPERSON OF INDEPENDENT

ELECTORAL AND BOUNDARIES COMMISSION………..2ND RESPONDENT

H.E UHURU KENYATTA……………………………………..3RD RESPONDENT

3RD RESPONDENT'S AFFIDAVIT

IN REPLY TO THE AFFIDAVITS OF 1ST PETITIONER AND DR.

NYANGASI ODUWO

I WINIFRED WACEKE GUCHU, a resident of Nairobi and of Post Office Box

Number 38601- 00623, Nairobi make oath and state as follows;

1. I am the Executive Director of Jubilee Party (“JP “). I was the Deputy Chief

Presidential Agent for JP’s Presidential team during the recently concluded

2017 general election for purposes of Regulation 57 of the Elections (General)

Elections, 2012. I am thus competent to make this affidavit. I now produce a

true copy of my appointment letter which is marked “WG 1”

2. I make this affidavit on the basis of matters within my own knowledge and as

regards matters of law, on the basis of advice from counsel on record which

advice I verily believe to be correct.

3. In the aforesaid elections, Jubilee nominated Uhuru Kenyatta and William Ruto

as its Presidential and Deputy Presidential candidates respectively. (“JP

candidates”).

RESULTS

4. On 11th August 2017, the 2nd Respondent announced that the JP candidates

won the Presidential election contest on the basis of the following results, which

were arrived at after the 1st and the 2nd Respondent had assured themselves that

the results were accurate:

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NAME VOTES PERCENTAGE

JOHN EKURU LONGOGGY

AUKOT

27,311 0.18%

MOHAMED ABDUBA DIDA 38,093 0.25%

SHAKHALAGA KHWA

JIRONGO

11,705 0.08%

JAPHETH KAVINGA KALUYU 16,482 0.11%

UHURU KENYATTA 8,203, 290 54.27%

MICHAEL WAINAINA

MWAURA

13,257 0.09%

5. JP as a party also won a majority of positions in all the other five elections

conducted on the same day. The following is a summary of the results in the 5

other elections for Gubernatorial , Senate, National Assembly, Women

Representative and Members of County Assembly:

Kenya 2017 Presidential Vote Distribution

2017 Number of Governors by Party

11,705

13,257

16,482

27,311

38,093

42,259

6,762,224

8,203,290

Shakhalaga Khwa Jirongo

Michael Wainaina Mwaura

Japheth Kavinga Kaluyu

John Ekuru Longoggy Aukot

Mohamed Abduba Dida

Joseph William Nthiga Nyagah

Raila Odinga

Uhuru Kenyatta

Presidential Election Votes

1

1

1

2

2

2

13

25

0 5 10 15 20 25 30

KANU

MCCP

NARC

FORD-K

Independent

WDM-K

ODM

Jubilee Party

Number of Governors per Party

3

Kenya 2017 Number of Senators by Party

Kenya 2017 Number of Woman Representatives by Party

1

1

1

2

2

2

13

25

0 5 10 15 20 25 30

CCU

FORD KENYA

PDR

ANC

KANU

WDM-K

ODM

JUBILEE PARTY

Senators

1

1

1

1

1

1

2

3

11

25

0 5 10 15 20 25 30

ANC

EFP

FORD KENYA

INDEPENDENT

MCCP

PDR

KANU

WDM-K

ODM

JUBILEE PARTY

Woman Representatives

4

Kenya 2017 Number of Members of National Assembly by Party

1

1

1

1

1

1

1

1

2

2

2

2

3

3

4

5

5

8

12

13

19

61

140

0 20 40 60 80 100 120 140 160

PNU

ND

NAPK

MUUNGANO

FAP

DP

CCU

0DM

PDP

KPP

KNC

CCM

PDR

MCCP

EFP

FORD-KENYA

FK

KANU

ANC

IND

WDM-K

ODM

JP

Number of Members of National Assembly by Party

5

Kenya 2017 Number of Members of County Assemblies by Party

6. The difference between the votes cast in favour of JP’s candidates and those cast in favour of the Petitioners, at the date the results were declared, is

1,441,066. The said difference is very significant and emphatically

demonstrates the resolve of the people of Kenya to exercise their free and

sovereign will.

1

1

1

1

1

1

1

1

2

2

2

2

2

2

2

2

2

2

2

3

3

4

4

4

5

5

6

7

8

9

10

10

12

14

15

22

27

38

47

51

87

105

338

582

0 100 200 300 400 500 600 700

AGANO

DDA

DPK

KADU-ASILI

NARC

PPK

RBK

SAFINA

CCU

DC

FPK

KNC

MGPK

ND

NVP

PDU

PICK

PTP

SDP

KSC

NARC-KENYA

DP

KADU

LPK

FAP

UDP

PDP

PPOK

KPP

NARC-K

MUUNGANO

NARC

CCM

PDR

EFP

MCCP

PNU

Kanu

ANC

FK

WDM-K

IND

ODM

Jubilee Party

Number of MCAs per Party

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7. According to observers of Kenya’s political landscape, voter registration patterns prior to the election and several polls indicated that JP enjoyed

significant support in Rift Valley, Upper Eastern region, parts of Nyanza and

Western Kenya, North Eastern Kenya, increased support in Coast , Nairobi and

in Central Kenya accounting for a potential voter base of 7, 500, 000 while

NASA had firm support in parts of Nyanza, parts of Western, parts of Coast

and in lower Eastern region, accounting for a potential voter base of 6,000,000.

The ultimate results are therefore not surprising.

8. The Petitioners have not presented any or any credible evidence and/or material that would invoke the jurisdiction of this honourable to disturb the sovereign

will of the people of Kenya exercised so emphatically on 8th August 2017.

CONDUCT OF ELECTION IN CONTEXT OF ARTICLES 81 TO 91 of

THE CONSTITUTION OF KENYA

9. I have nevertheless now read the Petition and Supporting Affidavits filed by the Petitioners to challenge the validity of the election held on 8th August 2017and

indeed the entire electoral process. I make this affidavit in response and in

opposition thereto and in particular the affidavit of Dr. Nyangasi Oduwo.

10. Having perused the Petition and the supporting affidavits filed with it, it is clear to me that the Petition is loosely structured around four (4) broad pillars, all

erected on a foundation of quicksand. The said pillars are as follows:

i) That the results declared on 11th August 2017 are invalid on account of

irregularities and numerical errors the Petitioners allege they have found

in Form 34A and Form 34B;

ii) That the 2nd Respondent had no legal basis for declaring results while

approximately 11,000 Form 34A’s had not been transmitted

electronically which the Petitioners contend was the exclusive statutory

mode of transmitting results;

iii) That the Presidential Election was marred and significantly

compromised by intimidation and improper influence 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;

iv) That the Presidential Election was so badly conducted, administered and

managed by the 1st Respondent as to contravene and violate Articles 38,

81 and 86 of the Constitution of Kenya as read together with section 44

of the Elections Act;

11. It is immediately clear to me that the Petitioner has gone to very great lengths to exaggerate facts, peddle outright falsehoods and suppress material facts in a

bid to mislead this Honourable Court and thereby obtain an unjust advantage to

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the prejudice and subversion of the will of the Kenyan people expressed in a

free, fair and credible election.

12. I have actively participated in all aspects of the electoral process either directly or through agents of JP. I can unequivocally state that in my view the 1st

Respondent and its staff, including the 2nd Respondent, have conducted the

entire process with remarkable diligence, efficiency and in full fidelity to the

standards established in the Constitution and all the electoral laws.

13. To my knowledge, the electoral process, as with all human endeavours, does encounter problems all over the world but the elections held on 8th August 2017

exceeded the statutory threshold for a credible election.

14. For clarity, I reject all the allegations, both specific and vague, set out in the Petition and in the affidavits filed in support thereof, regarding the misconduct

and irregularities attributed to the 1st and 2nd Respondents.

15. The Petitioners dedicate a considerable portion of their Petition to attempting to demonstrate how hopelessly incompetent and inefficient the 1st Respondent is.

Nothing could be further from the truth and the Petitioner’s anger at the

Respondents must be viewed against the following facts and circumstances;

i. In 2013, the Petitioner participated in the Presidential election and was declared the runner up. He rejected the results on the basis, inter alia, that

the 1st Respondent had “stolen” the election from him.

ii. His claims were rejected by this honourable court in a decision reported as Raila Odinga & 2 others v Independent Electoral & Boundaries

Commission & 3 others [2013] eKLR

iii. The Petitioner, with the assistance of surrogates affiliated to an umbrella NGO entity known as Africog, including Mr Maina Wachira and Mr

Maina Kiai, immediately thereafter embarked on a project to undermine

the judicial authority of this honourable court and the confidence Kenyans

were developing in their constitutional and statutory institutions by making

scathing attacks in local, regional and international media on the court , the

1st Respondent and any other institution or individual who had played any

role in the election.

iv. The Petitioners also alleged, without any basis, that the election was in fact a military coup. They have repeated the same baseless claims again this

year both before and after the elections including filing a court case against

the Kenya Defence Forces.

v. In the intervening period, the 1st Petitioner has persisted in peddling, at every opportunity and forum, the false and untenable narrative that

elections can only be considered free fair and credible in Kenya if he is

declared the winner. I now produce several news articles, including an

editorial by the Washington Post on 18th August 2017which are in a

bundle marked “ WG2”

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vi. Indeed, on 10th August 2017, even before the 1st Respondent had concluded the exercise of collating results from the 290 constituencies as

required by law, the Petitioners agents, through a letter of the same date

addressed to the 2nd Respondent, asserted that he was in possession of what

his agents called “the actual presidential election results contained in the

IEBC database” which indicated that he had won the election having

garnered 8,041, 726 votes against 7,755,428 votes for JP’s candidates.

vii. The aforesaid letter was also read out at a press conference televised to the nation and the world. The said letter and media briefing are produced at

pages 180 to 184 of the bundle that contains Mr Godfrey Osotsi’s affidavit.

viii. The Petitioners demand was a clear violation of the provisions of Article 2(2) of the Constitution of Kenya which states that: “No person may claim

or exercise State authority except as authorised under this Constitution.”

ix. The 1st Petitioner had a day earlier, on 9th August 2017 , indicated that the results for the entire 2017 general election, including all the other positions

( namely gubernatorial , senate, national assembly , women representative

and member of county assembly) had been irreversibly prejudiced by a

hack into the results transmission system of the 2nd Respondent. The 1st

Petitioner’s press statement to the effect has been produced at pages 172

to 178 of the bundle that contains Mr Godfrey Osotsi’s affidavit.

x. I am aware, from discussions I have held with colleagues in NASA, that the 1st Petitioner tried to coerce candidates nominated by NASA affiliate

parties for the gubernatorial, senate, national assembly, women

representative and member of county assembly positions to reject their

elective posts in solidarity with the Petitioners and so as strengthen the

false narrative that the election had been hacked but nearly all refused to

do so.

xi. The Petitioners now appear to have abandoned some of the aforesaid outrageous and outlandish allegations and have in lieu thereof directed

their attention to a new mutated allegation set out at Paragraph 14 of the

Petition, again false, that the Presidential Election was so badly conducted

and marred with irregularities that it does not matter who won or was

declared as the winner of the Presidential Election.

xii. I therefore intend, in the next section of this affidavit, to demonstrate why the 2017 election is the most efficient, accountable, accurate and credible

election Kenya has conducted to date.

Complaint NO 1: Non-Compliance with Electoral Law by 1st and 2nd

Respondents

16. During the 7 months or so that the 1st Respondent’s Commissioners have been in office, the 1st Respondent has outdone itself in establishing and overseeing

the creation of a very solid statutory and legal framework for the conduct of

free, fair and credible elections.

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17. It is my firm observation that the 1st Respondent has scrupulously complied with all statutory requirements within the limits of human capacity. The

following are some examples:

a. In early 2016, the Petitioners and their coalition partners launched an unprecedented series of sustained and incessant attacks on the 1st

Respondent, its Commissioners and staff with the intention of creating

and sustaining the false narrative that the 1st Respondent was either

unprepared, partisan or incompetent.

b. The attacks on the 1st Respondent were accompanied by demonstrations led, coordinated and financed by the Petitioners and their coalition of

political parties, at the time known as CORD, which ultimately turned

extremely violent and deadly and led to several court cases including

the case reported as Ferdinand Ndung’u Waititu & 4 others v

Attorney General & 12 others [2016] eKLR wherein the learned

judge stated as follows at paragraph 52 of the judgement: “The

Petitioners however stand in better stead when they urge that the 9th

Respondent (INSPECTOR GENERAL OF POLICE) be ordered to

ensure the security, public safety and observance of the law. There is

evidence before me that the protest marches and demonstrations

organized by the 5th Respondent (COALITION FOR REFORMS

AND DEMOCRACY COALITION FOR REFORMS AND

DEMOCRACY) always commence peacefully but later become violent

and riotous: see the affidavits sworn in support of the motion by the

Petitioners.”

c. As a result of the aforesaid demonstrations, political parties were forced to initiate a bipartisan effort to address the grievances put forward by

CORD. On the 5th July, 2016, the senate and the National Assembly,

respectively, approved a motion that established a Joint Parliamentary

Select Committee on matters relating to the Independent Electoral and

Boundaries Commission and the conduct of elections in Kenya.

d. The mandate of the committee was inter alia to recommend legal, policy and institutional reforms to strengthen the Independent Electoral and

Boundaries Commission and improve the electoral system and

processes to ensure the August 2017 elections are free and fair and are

administered in an impartial, efficient, simple, accurate, verifiable,

secure, accountable and transparent manner.

e. The committee produced a report which included 3 draft bills of which amendments to the Elections Act were effected by the Election Laws

(Amendment) Act, 2016 which became operational on 4th October,

2016.

f. On 16th January 2017, Parliament enacted Section 44A of the Elections Act through the Election Laws (Amendment) Act, 2017.

g. Subsequent thereto, the 1st Respondent, after complying with the provisions of Section 109 of the Elections Act and the Statutory

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Instruments Act, 2013, published the following regulations which were

reviewed by the Legal affairs Committee of the National assembly and

debated by the full house on 29th and 30th March 2017 and on 4th, 5th and

6th April 2017:

i. Elections (Registration of voters) Regulations; ii. Elections (Voter education) Regulations;

iii. Elections (General) Regulations; iv. Elections (Parliamentary and county elections) Petitions Rules,

2017;

v. Elections ( Technology ) Regulations, 2017; vi. The Elections (General) (Amendment) Regulations , 2017

h. In yet another unprecedented feature of election planning in Kenya, political parties , several citizens and NASA, either directly or through

surrogates including Maina Kiai , Africog , Katiba Institute , George

Kegoro , John Githongo and Gladwell Otieno filed over 40 cases,

exclusive of the over 400 cases related to party primaries, in courts all

over the country and at all levels seeking adjudication of disputes or

declaratory orders attacking numerous sections of the Elections Act and

other provisions of the various statutes that regulate the planning of

elections.

i. On average, between December 2016 and July 2017, the 1st Respondent was forced to divert critical resources, time and manpower to defending

at least 6 court cases per month.

18. The following are brief particulars of the said cases:

A. Petition No. 399 of 2016, Mugambi Imanyara and Another v AC & 3 others

Subject: Constitutionality of Sections 2, 6, 7, 8 and 14 of the Election Laws

(Amendment) Act 2016. Vide a judgment delivered on 16th of February 2017,

the petition was dismissed. The Petitioner’s sought to file a Notice of Appeal

B. Petition No. 56 of 2017, Council of Governors v Attorney General and Another

Subject: Constitutionality of Section 28 of the Election Act, 2011 as amended

by Section 10 of the Election Laws (Amendment) Act, 2017. This was the law

regulating and or baring party hopping. Vide a judgment delivered on 26th of

April 2017, the Petition was dismissed,

C. Petition No. 179 of 2017, Maendeleo Chap Chap Party

Subject: Challenging Section 10 of the Elections (Amendment) Act, 2017

prohibiting aspirants from party hopping 120 days from the date of the General

election. The Attorney General Raised a preliminary objection that the matter

was res judicata. The petition was dismissed.

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D. Petition NO 371 of 2016, Center for Rights Education and awareness & 2 others v The Speaker of the National Assembly.

Subject: Dealt with the issue of the two thirds Gender principle in parliament.

The petition was allowed and parliament was given 60 days within which to

enact the two third gender rule. Both the National Assembly and the Senate have

filed notices of appeal.

E. Petition No. 401 of 2016, Wilbert Kipsang and the Attorney General.

Subject: Dealt with the issue of the two third gender principle in parliament.

The matter was raising similar issues with Petition no. 371 of 2016. The matter

was stood over generally by dint of the judgment in 371 of 2017 above. The

petition is mute.

F. Petition no. 162 of 2017, Apollo Mboya versus Attorney General.

Subject: seeking a declaration that the government delivery portal violates

Section 14 of the Election Offences Act which bars the Government from

advertising its achievements during the election period. The matter came up on

4th of May. Jubilee Party successfully opposed the grant of the interim orders.

G. Malindi Petition NO. 12 of 2017, Angaza Empowerment v IEBC & A.G

Subject: where the Petitioners were challenging the Constitutionality of the

Gazette notice issued by IEBC setting the calendar for party nominations. The

petitioners obtained ex-parte orders extending the deadline for political parties.

The matter was marked as settled by consent of the parties.

H. Court of Appeal NO. 105 of 2017, Maina Kiai and 2 others v IEBC and Another.

Subject: seeking a declaration that the announcement of presidential results at

the constituency level is final. The Court of Appeal vide its judgment delivered

on 23rd of June 2017 uphold the high court decision and declared to the extent

that Section 39(2) and (3) of the Elections Act and Regulations 87(2) provides

that presidential election results declared by the Constituency returning officer

are provisional. It is contrary to the Constitution and therefore are null and void.

I. Petition NO. 576 of 2015 (consolidated with Petition NO. 148 of 2016) , Andrew Kiplimo Sang Muge & others v the IEBC and another.

Sought a declaration that there exists a conflict between Article 177(1) & Article

177(4) of the Constitution on the term of MCA’s. Judgment was delivered on

27th of April 2017. The Petition was allowed to the extent that the term of the

MCA’s ends on 3rd of March 2018. The AG filed a notice of Appeal.

J. Kericho Petition No. 1 of 2017 as consolidated with Kericho Petition NO. 2 of 2017, Eric Cheruyiot and another.

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Challenging the Constitutionality of the law requiring public servants to resign

six months before elections. The petition was allowed. The Respondents sought

to appeal the said decision.

K. Petition NO. 7 of 2017, Dr Samuel Thinguri Warwathe v Mary Mungai, Commissioner for Co-operative Development and 2 others.

Issue concerned public servants to resign six months before election. The matter

was consolidated with Kericho Petition NO. 1 of 2017 (above).

L. Nairobi Petition NO. 219 of 2016, Katiba Instutute and Another V AG & Parliament.

Challenging the Constitutionality of Part IV of the Elections Act and Part IV of

the County Government Act on the procedure for recalling an MP and MCA.

M. Petition NO. 60 of 2017, Shadrack Kinyanjui Wambui v IEBC & 2 others.

Issue concerned the voting rights of prisoners to be extended beyond the

presidential elections to include members of the County Assembly, Members of

Parliament and governors. Judgment was delivered on 31st of July 2017. The

petition was dismissed. The legal notice no 73 of 2017 issued by IEBC rendered

the entire petition moot.

N. Petition No. 142 of 2017, Okiya Omtata v Attorney General.

Challenging the constitutionality of Chapter Six working group on election

preparedness. The matter is still pending in Court.

O. Petition No. 68 of 2017, Okiya Omtata v Jubilee Party & 2 others

Challenging the requirement of clearance documentation of political candidates.

The matter is still pending in court.

P. Petition No. 47 of 2015, Okiya Omtata v IEBC and 2 others

Dealt with the registration of voters. Constitutionality of Section 3 of the

Election Laws (Amendment) Act 2016 on the voter registration documents and

voter registration deadlines.

Q. Civil Appeal no 105 of 2017, IEBC versus CORD & another.

On the issue of the tender in respect of the supply and delivery of IEBC Ballot

papers. The judgment was delivered in favour of the the ex-parte applicant at

the High Court. The Court of Appeal upheld the decision of the High Court

nullifying the award of the tender to Al Ghurair in a decision delivered on 9th of

June 2017.

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R. Petition NO. 489 of 2016, Jared Juma v IEBC and another

Criteria on the mode used for shortlisting of Applicants for the IEBC

Commission. Judgment was delivered on 9th December 2016 in favour of the

Petitioner.

S. Petition No. 71 of 2017, Kenya Diaspora Alliance.

Seeking a declaration that Respondents have violated the rights of Kenyan

Citizens in the diaspora by failing to register them as voters.

T. Petition NO. 47 of 2017,

Seeks a declaration that birth certificates and expired passports are valid

documents for registration. Section 3 of the Election Laws (amendment) Act no

36 of 2016 is unconstitutional and also sought a declaration that a s singe

database of all citizens should be used to transact all affairs of citizens.

U. Petition NO. 161 of 2016, Okiya Omtata

Challenges the Constitutionality of Section 22(1)(b) of the Elections Act

introducing the education eligibility requirement for elective posts.

V. Petition No. 16 of 2017, Bado Mapambano Trust

Seeks a mandatory order to quash election laws (amendment) act of public

participation in the National assembly. Declarations that Section 44A of the

Elections Act violates Article 86 of the Constitution, Section provides for

complementary mechanism for voter identification.

W. Judicial Review No. 378 of 2017, National Super Alliance Seeking an order of certiorari to quash the decision of IEBC made on 29th of

May 2017 awarding the tender for the printing of election materials for the

presidential elections. Judgment delivered on 7th of July 2017. Application

allowed.

X. Judicial Review Case no. 648 of 2017, CORD versus IEBC

Challenging the award of the tender to Al Ghurair for printing of the ballot

papers.

Y. Petition no168 of 2017, Maina Kiai and others V IEBC

Challenging the importation of the electronic voter identification evids and

alleged breach of Section 44(1) (2) & (4) of the Elections Act & Legal notice

No. 78 of 15th of July 20015 on public participation. Judgment delivered on 14th

of July 2017. Petition dismissed for reasons that IEBC satisfied the requirement

for public participation.

Z. Judicial Review Case no 447 of 2017, Gladwell Otieno v IEBC

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Seeking orders of mandamus to compel the IEBC to release the register of

voters for public inspection and gazette the final register of voters. IEBC

directed to avail the register of voters of all polling stations for inspection by

the public in the web portal or by any other means pursuant to Section 6(1) and

(2) of the Elections Act and regulations. Judgment delivered on 3rd of August

2017. Order made directed to IEBC to publish in the media a confirmation that

the register of voters is open for inspection.

AA. Judicial Review Case no 153 of 2017, Japheth Muroko v IEBC and KPMG

BB. Judicial Review No. 647 of 2016, CORD v AG & National Assembly,

Proceedings seeking to halt debate in parliament regarding Section 44A of the

Elections Act. Petition dismissed.

CC. Civil Appeal No. 224 of 2017, IEBC versus NASA

Judgment of the High Court set aside to the extent that public participation is

not a mandatory requirement in public procurement. Judgment delivered on 20th

of July 2017.

DD. Civil Appeal No 63 of 2017, AL Ghurair Printing & Publishing v CORD Challenging the execution of the contract as executed by the CEO of IEBC in

the absence of the Chairman and commissioners which decision was quashed

by the High Court. Appeal dismissed vide a judgment delivered on 26th of April

2017. Judgment of the High Court upheld.

EE. Petition no 241 of 2017, Cecil James Oyugi v IEBC & another,

Proceedings seeking to challenge the review of the tendering process, the

subject of adjudication of JR 637 of 2016. Petition dismissed vide a judgment

delivered on 13th of May 2017.

FF. Petition no 9 of 2017, Tutus Alila & 2 others v IEBC

Petition sought for orders compelling the IEBC to declare presidential results

within 7 hours of closure of polling stations. The petition was dismissed.

GG. Petition No. 373 of 2017, NASA v Defence Forces

Challenging the possible deployment of the Kenya Defence Forces (KDF) in

conjunction with other national security agencies before or during the 8th August

2017, General Elections. Mention on 22nd September 2017.

HH. Petition NO. 388 of 2017, Africog v IEBC & others

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Proceedings challenging the alleged failure by IEBC to respond to the

Petitioner’s request dated 31st of July 2017 for information in accordance to

Article 35 of the Constitution seeking members of the public to be allowed

within 400 meters radius within the polling stations. Petition dismissed vide

judgment delivered on 7th August 2017.

19. Articles 10, 38, 81 and 86 of the Constitution enjoin the 1st Respondent to conduct elections that are free, fair, secure, and transparent, devoid of

discrimination, with full participation of the public and other stakeholders and

in a manner that is simple, verifiable and accountable.

20. The said principles have all been adhered to by the 1st Respondent, in that the 1st Respondent did the following:

a. Oversaw the successful increase of polling stations from approximately 31,000 in 2013 to 40, 883 in 2017. This represents a 32% increase in

polling stations. This led to better access to polling stations by voters

and reduced congestion in polling stations.

b. Counting , tallying and announcements of results in polling stations was therefore more efficient and accurate.

c. Updated the voter register, in electronic form, and led a voter registration exercise that pushed the number of registered voters from

14,352,545 voters in 2013 to 19,611,423 in 2017. This represents a

36.6% increase in the number of voters.

d. Approximately 15.3 million Kenyans turned out to exercise their sovereign right to vote on 8th August 2017 representing an 80% turnout

rate.

e. Procured the services of a professional audit firm, KPMG, which successfully undertook, for the first time in Kenya’s electoral history,

a thorough audit of the voters register which established that the voters

register did not contain the names 2 million voters as the Petitioners

had claimed following the 2013 elections.

f. Following the said voter register audit, the 1st Respondent made the entire voters register available for public scrutiny on its website. As a

result, accuracy of the voters register was exceptional. Consequently,

unlike in 2013, there were no allegations of multiple voter registers

made against the 1st Respondent.

g. In an unprecedented transparency initiative and following 5 separate protracted cases regarding procurement of ballot papers at the Public

Procurement Administrative Board, the High Court and at the Court of

Appeal, the 1st Respondent made arrangements for representatives of

the presidential candidates, members of the local and international

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media and observers to travel to Dubai to assure themselves of the

integrity of the process.

h. Successfully procured and implemented the integrated electronic electoral system (known as KIEMS) that was used in the following

aspects of the electoral process:

i. biometric voter registration, ii. biometric voter identification and

iii. Electronic result transmission system.

i. The use of KIEMS was largely successful due to early procurement, deployment and training of staff on its use. To avoid the failure of the

system as happened in 2013, the 1st Respondent ensured the batteries

for the devises were adequately charged well in advance.

j. Presided over the procurement and distribution of election materials for the largest number of candidates in Kenya’s history including 45,000

KIEMS kits.

k. Recruited and trained 362, 858 election officials drawn from all corners of Kenya and in accordance with the values and principles of civil

service set out at Article 232(1) (i) of the Constitution of Kenya. , from

a pool of 982, 381 applications, to conduct the elections.

l. Successfully processed the nomination of 14,552 political party and independent candidates, the highest number of candidates to contest in

any election in Kenya. Jubilee presented the largest number of

candidates followed by ODM and Maendeleo Chap Chap which was

supporting Jubilees Presidential candidates. The number of candidates

presented by the 3 parties is as follows:

i. Jubilee - 1801 ii. ODM - 1289

iii. Chap Chap - 911

m. The introduction of the KIEMS system enhanced the integrity of the electoral process as the configuration of the KIEMS kit eliminated

opportunities for electoral fraud.

n. Held three separate sessions at Safari Park Hotel, Lillian Towers and at KICC for political parties, the media, election observers and the public

to demonstrate how the KIEMS kits were expected to work on Election

Day regarding voter identification and results transmission.

o. For example, the kits were configured to reject any recording of votes in excess of the number of registered voters, and ballot stuffing by

extension, in any polling station.

17

p. In addition, due to some of the amendments made to the electoral laws, the maximum number of voters per stream was standardized at 700

which led to a very significant improvement in the voting process, vote

counting and announcement of results.

q. Engaged in meetings and other initiatives with Kenyan security personnel to ensure there is adequate security during the entire electoral

process including the election date itself.

r. Convened a National Elections Conference for over 1000 stakeholders, including the Petitioners representatives, between 12th and 14th June

2017 at the Kenyatta International Conference Centre to discuss

preparations for the elections.

s. Conducted extensive voter education programmes through all forms of media including seminars, village meetings, posters, newspaper

advertisements, digital campaigns on Facebook, Twitter and the

Internet, television and radio advertisements, mobile phones and

through other fora. Some of the aforesaid material is still readily

available at the 1st Respondent’s website, www.iebc.or.ke , its

Facebook book page and its twitter handle.

t. Released an Elections Agent manual to assist political parties and independent agents to train their agents.

u. Prior to its disbandment by the High Court, convened the Elections Technology Advisory Committee whose role was to advise the 1st

Respondent on the adoption and implementation of election

technology.

v. Among the technological innovations introduced by the 1st Respondent pursuant to the provisions of Article 83(3) of the Constitution of Kenya

was a Short Message Service (SMS) application that allowed voters to

verify their registration status and particulars.

w. Published and supervised the execution of an electoral code of conduct as required by section 110 of the Elections Act. The said code has been

extremely helpful, at least until the election was held, in ensuring the

elections were held in a civil and pacific environment.

x. Held proceedings to enforce the electoral code of conduct. Several candidates were censured which helped keep the campaign period

generally peaceful in most areas.

y. The 1st Respondent provided adequate and well organized facilities at the County and, Constituency and National Tallying centres for

political party and independent candidates.

z. Kept the public and other stakeholders fully updated and informed regarding all aspects of preparation for the General Election. I now

produce a bundle of some of the many notices published by the 1st

http://www.iebc.ork.ke/

18

Respondent on its website and in the daily print media which is, marked

“WG3 “

aa. Indeed, the Petitioners concede that the 1st Respondent was very forthcoming with information, assurances and whatever clarification

their respective political parties sought over a wide range of issues that

covered practically every aspect of the elections.

bb. Some of the extensive correspondence exchanged between the 1st Respondent and NASA is produced at pages 1 to 87, inclusive, of the

bundle of documents bound together with the affidavit of Godfrey

Osotsi and again at pages 180 to 202 of the same bundle of documents.

cc. Accredited numerous local and international observers, agents and media representation as required by section 42 of the Elections Act.

dd. Published guidelines and a Code of Ethics for election observers.

ee. Convened a tribunal with guidelines for dispute resolution mechanisms to deal with settlement of disputes arising out of political party

nominations as required by Article 88(4) (e) of the Constitution,

Section 74 of the Elections Act.

ff. The said tribunal and the Political Parties Tribunal handled well over 370 cases within a span of one month and sat to hear disputes late into

the night and on weekends.

gg. Caused printing of ballot papers and procured election materials for over 40,883 polling stations despite the short period left to the 1st

Respondent following amendments to electoral laws early this year,

and numerous court cases which disrupted the electoral process

preparation calendar.

hh. For the first time in Kenya’s history, ballot papers for all six elections were printed with pictures of all candidates which enhanced the

exercise of voters rights under Articles 38, 81, 83 and 86 of the

Constitution of Kenya.

ii. Improved an extremely useful and resourceful website, Facebook page and twitter handle which contain all the information required to satisfy

the transparency requirements under Articles 10, 81 and 86 of the

Constitution.

jj. Facilitated the Political Parties Liaison Committee which was a forum established to give voice to political parties and their candidates, during

the electoral processes so as to minimise unnecessary

misunderstanding.

kk. As a tool of transparency and accountability, the 1st Respondent, put up a call centre facility to receive and respond to any concerns raised by

voters and other stakeholders. The call centre, at the National Elections

19

Center at Bomas of Kenya, had 70 attendants working in shifts round

the clock. Over 10,000 calls were received during before, during and

after the General Election. The following are some of the enquiries the

call centre dealt with:

Before Elections

Confirmation of registration status

Arrival of election materials

Questions about the voting process

Questions about required documents for identification

Incident reporting

During Elections

Reports of delays in opening of polling stations

Reports of KIEMS technology failures

Reports of slow queues and unruly conduct

After Elections

Questions about results on TV and via the public portal

Questions about the tallying process

Why presidential results are given preference over other

results

21. The 1st Respondent’s conduct of the election held on 8th August 2017 must also be assessed in the context of the following facts:

a. As with the 2013 elections, the fact that 6 elections were held on one day required double the material, including ballot boxes and ballot

papers, compared to the material required for previous elections.

b. For only the second time in Kenya’s history, portions of the electoral process were conducted through electronic means including voter

registration, which was carried out entirely by the Biometric Voter

Registration System (BVR).

c. This was the second election conducted under the Constitution of Kenya, 2010.

d. Significant delays in the enactment of electoral laws by parliament, which was compounded by several late stage amendments to such laws

with the attendant consequence that the 1st Respondents schedule of

executing the efficient conduct of the elections was disrupted.

22. I have always been and remain a firm and passionate believer in Kenyan institutions, some imperfections notwithstanding, and in the sovereign right of

the Kenyan people to reform and improve such institutions without disparaging

them in the manner the Petitioners perennially do.

23. The 1st Respondent has, in my view, acquitted itself very well under very difficult circumstances and is to be commended and not vilified.

20

Electronic Results Transmission System

24. The Petitioners and the various deponents of affidavits place great emphasis, albeit mistakenly, on the results that were being transmitted and being streamed

in at a public electronic display in Bomas of Kenya and on an online public

portal:

https://public.rts.iebc.or.ke/enr/index.html#/Kenya_Elections_Presidential/1.

25. It bears repeating that the Constitution of Kenya does not impose any duty on the 1st Respondent to exclusively use electronic systems to transmit results. The

requirement is for the 1st Respondent to ensure that at every election, whatever

method is used, the system is simple, accurate, verifiable, accountable and

transparent.

26. Further, Section 44A of the Elections Act grants the 1st Respondent a statutory discretion to the use of a complementary mechanism where technology either

fails entirely, fails to work properly or does not meet the aforesaid

Constitutional threshold of a system that is simple, accurate, verifiable,

accountable and transparent.

27. I now proceed to set out the manner in which the law contemplated the electoral process should be conducted and that the said statutory requirements were

indeed complied with.

28. Voting in Kenya is done by casting a paper ballot. All 15.3 million Kenyans who voted cast a paper ballot for each of the 6 elections held that day.

29. Upon conclusion of voting, the ballots were counted in the room where voting took place pursuant to the provisions of Regulation 76 of the Election (General)

Regulations.

30. The counting, which was undertaken manually, took place in the presence of all agents , observers, police officers and other people duly authorized pursuant to

the provisions of Regulation 74 of the Elections (General) Regulations and

because this happened quite early after close of the polls, in most cases all

agents were available.

31. The Petitioners had an added advantage as the NASA coalition comprises of 5 political parties who were competing among themselves and were entitled to

extra agents for the other elective positions.

32. Indeed, according to ELOG, an observer group which deployed one of the largest observer delegates during the recently concluded elections, the

Petitioners had very good representation of agents. A report prepared by the

aforesaid ELOG, a true copy of which is annexed hereto and marked “ WG 4”

states as follows at the relevant passage of the report:

https://public.rts.iebc.or.ke/enr/index.html#/Kenya_Elections_Presidential/1

21

“On the closing and counting process, our findings indicated as follows:

An ODM, WIPER, ANC or Ford Kenya party agent (representing the NASA coalition) were present in 84% of all the polling stations. In stations

where they were present, the NASA agent signed the declaration of results

for the presidential elections in 93.8% of these polling stations (as

compared to 94.9% in 2013).

For the closing and counting process, a Jubilee party agent was present in 92.3% of all the polling stations. In stations where they were present,

the Jubilee agent signed the declaration of results for the presidential

elections in 95.8% of these polling stations as compared to 95.6% in 2013).

Agents for independent candidates were present in 78.7% of all the polling stations. In stations where they were present, the agent signed the

declaration of results for the presidential elections in 88.7% of these

polling stations.

In 86.5% of the polling stations, a copy of the Presidential Results Form (From 34 A) was publicly affixed outside (as compared to 89% in 2013).”

33. Nevertheless, Regulations 62(3) and 79(6) of the Elections (General) Regulations make it clear that the non-attendance or refusal by an agent to sign

Form 34A does not in itself invalidate the results announced. The said

regulations state as follows:

“Regulation 62(3)

The absence of agents shall not invalidate the proceedings

at a polling station.

Regulation 79 (6)

The refusal or failure of a candidate or an agent to sign a

declaration form under sub-regulation (4) or to record the

reasons for their refusal to sign as required under this

regulation shall not by itself invalidate the results

announced under sub-regulation (2)(a).

Regulation 79(7)

The absence of a candidate or an agent at the signing of a

declaration form or the announcement of results under

sub-regulation (2) shall not by itself invalidate the results

announced.”

34. Once the counting was completed for each position, the presiding officer announced the result, and the agents present and the presiding officer signed the

statutory Form and gave a copy to all agents present. For the Presidential poll,

this was Form 34A.

35. As an added measure of transparency and by virtue of the provisions of Regulation 79(2A)(a) of the Elections( General ) Regulations , a copy of form

34 was affixed at the public entrance to the polling station or at any place that

22

was convenient and accessible to the public at the polling station. I note that Dr

Oduwo has not complained in any of his affidavits that this requirement was not

fulfilled nor have any of the observers or media houses.

Streamed results

36. By virtue of the provisions of Section 39(1C) of the Elections Act and Regulation 82 of the Elections (General) Regulations, once the process of

counting at the polling station was concluded, the results were simultaneously

sent electronically to the constituency tallying centre and to the national tallying

centre.

37. The aforesaid Regulation 82 states as follows:

“Provisional results to be transmitted electronically

(1) The presiding officer shall, before ferrying the

actual results of the election to the returning officer at the

tallying venue, submit to the returning officer the results

in electronic form, in such manner as the Commission may

direct.

(2) The results submitted under sub-regulation (1)

shall be provisional and subject to confirmation after the

procedure described in regulation 76.”

38. These were the results streaming into the public portal at the Bomas of Kenya and whose streaming the Petitioners attempted to stop on 9th and 10th August

2017 at various press conferences, meetings with the 1st Respondent and

through the correspondence attached at pages 172 to 184 of the bundle of

documents attached to the affidavit of Godfrey Osotsi.

39. As the 2nd Respondent kept emphasizing during the regular press updates he gave between 9th and 11th August 2017, the streamed results were not the ones

used to declare the winner of the election, which by virtue of the decision of the

court of appeal reported at Independent Electoral & Boundaries Commission

v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba

Institute & Coalition for Reforms & Democracy [2017] eKLR had been

conclusively tallied, collated and announced at all 290 constituencies.

40. There was therefore no legal requirement in the law obliging the 1st Respondent to avail Form 34A to any of the presidential candidates for verification which

was the basis of the streamed result to be on the electronic portal. The reasons

are fairly straight forward as follows:

a. The role of the 2nd Respondent at the National Tallying Centre was limited to collating the results recorded in the 290 Form 34B’s.

b. The role of the 2nd Respondent , according to the Court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai, Khelef

Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition

for Reforms & Democracy [2017] eKLR was proscribed in terms that ,

and I quote: “It cannot be denied that the Chairperson of the appellant has

23

a significant constitutional role under Sub-Article (10) of Article 138 as

the authority with the ultimate mandate of making the declaration that

brings to finality the presidential election process. Of course before he

makes that declaration his role is to accurately tally all the results exactly

as received from the 290 returning officers country-wide, without adding,

subtracting, multiplying or dividing any number contained in the two

forms from the constituency tallying center. If any verification or

confirmation is anticipated, it has to relate only to confirmation and

verification that the candidate to be declared elected president has met the

threshold set under Article 138(4), by receiving more than half of all the

votes cast in that election; and at least twenty- five per cent of the votes

cast in each of more than half of the counties.”

41. I have however noted that several of the 1st Petitioner’s supporting affidavits , in particular the 2nd Affidavit of Godfrey Osotsi, and the 1st Petitioner’s

supporting affidavit , at paragraph 13 , takes the position, erroneously as I will

demonstrate shortly, that :

a. The 1st Respondent was under a mandatory statutory duty to transmit results exclusively by electronic means.

b. By the time the results were declared, the 1st Respondent had only received 29, 000 form 34A’s electronically, leaving a balance of 11,883.

c. On account of (ii) above, the 2nd Respondent had no legal basis for declaring the results even if he received the remaining 11, 883 form

34A’s manually on account of the legal interpretation regarding

exclusive electronic transmission of results favored by the 1st Petitioner.

42. The 1st Petitioner’s insistence on this position is a deliberately deceitful. The facts are as follows.

43. The 1st Respondent does not have telecommunication network facilities of its own, as yet. The 1st Respondent must therefore rely on duly licensed

telecommunication service providers to provide the service.

44. By virtue of the provisions of Regulation 20 of the Elections (Technology) Regulations, 2017, telecommunication network service providers are under an

obligation to provide and deliver services as may be requested by the 1st

Respondent.

45. As technology is susceptible to failure, sabotage or human error , Regulation 24 of the Elections (Technology) Regulations, 2017 states as follows:

“Operations continuity plan and testing

(1) The Commission shall establish an operations continuity plan,

deleting both operational and technical processes, procedures and

tools.

(2) The operations continuity plan established under sub regulation (1)

shall provide mitigation and contingency measures, including

24

preparedness, prevention, response and recovery measures for

potential failures of technology.”

46. The term “potential failures in technology”, for purposes of the transmission of results, includes lack of or poor network coverage. In light of the key, albeit non

- exclusive, role technology was to play in the 2017 general elections, the 1st

Respondent , in consultation with telecommunication service providers, was

required by the provisions of Regulation 21 of the Election ( Technology)

Regulations , 2017 to identify and communicate, in a timely manner, to all

stakeholders the network service available at different polling stations and in

areas where there is no telecommunication network, inform the stakeholders

and publish this information.

47. As an added measure of necessary pre-caution, on 16th January 2017 parliament enacted Section 44A of the Elections Act through the Election Laws

(Amendment) Act, 2017. The said section states as follows:

“Notwithstanding the provisions of section 39 and section 44, the

Commission shall put in place a complementary mechanism for

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.”

48. Pursuant thereto, on 21st April 2017, the 1st Respondent issued The Elections (General) (Amendment) Regulations, 2017 by which it put in place the

complimentary system contemplated by Section 44A. The said regulations were

published vide Legal Notice Number 72 contained in a special issue of

Supplement Number 65 of the Kenya Gazette.

49. The Coalition for Reform and Democracy (CORD), the Coalition that nominated the Petitioners to contest the presidency in 2013 and which has now

morphed into NASA, strenuously objected to the said enactment and indeed

filed several suits including Judicial Review Miscellaneous Application no 657

of 2016 to stop parliament from debating the said enactment.

50. On 30th June 2017, NASA filed Constitutional Petition no. 328 of 2017 wherein it sought the following orders:

i) Firstly, for a declaration that the respondent should have developed the complementary mechanism within 60 days before

the 2017 general elections.

ii) Secondly, for a declaration that the respondent has failed to do so within the prescribed period as envisaged by section 44A of

the Act.

iii) Thirdly, the petitioner craves for a declaration that the identification of voters and transmission of results for the

election to be held on 8th August 2017 be exclusively electronic.

25

51. At the said hearing, Jubilee presented the court with compelling reports from all over world to demonstrate the absolute necessity for a paper backed electronic

system including the following:

i) A true copy of a report titled Case Study Report on Electronic Voting in the Netherlands by Ben Goldsmith and Holly Ruthrauff. The report is

marked ‘’ WG 5’’.

ii) A true copy of a report titled Federal Efforts to Improve Security and Reliability of Electronic Voting Systems Are Under Way, but Key

Activities need to be completed, published by United States Government

Accountability Office on September, 2005. The report is marked ‘’ WG 6’’.

iii) A true copy of a report entitled “Why machines are bad at counting votes” published on 30th April, 2009 by the Guardian Newspaper of the United

Kingdom. The report is marked ‘’ WG 7’’. In one particularly blunt passage

to be found at page 180 of the report, the author of the report states as

follows:

“It's commonly said that insanity is doing the same thing

over and over again while expecting different results. Yet this

is what we keep doing with electronic voting machines - find

flaws and try again. It should therefore have been no surprise

when, at the end of March, California's secretary of state's

office of voting system technology assessment decertified older

voting systems from Diebold's Premier Election Solutions

division. The reason: a security flaw that erased 197 votes in

the Humboldt county precinct in last November's presidential

election.”

iv) A true copy of a report entitled Hagai Bar-EL on Security, why secure e-voting is so hard to get, published on 22nd July, 2015 by Hagai Bar-EL

marked ‘’WG 8.’’. In the following passage at page 5 of the report, the

authors state that:

“The main concern with electronic voting as a concept is not

the security of the system, as it is the verifiability of the system.

The vote collection and counting process is so critical to

democracy that it cannot depend on the goodwill and skills of

the DRE voting machines vendor employees. If the public

cannot ascertain that the logic of vote collection and counting

indeed works as advertised, then there is absolutely no reason

for the public to agree to cast the fate of democracy on this

opaque device. The paper ballot system we use today is dumb

and simple, but this mechanical simplicity is what allows

visibility to anyone who cares to inspect the process.”

v) A true copy of a report entitled Ex-MI6 boss warns over electronic voting risk, published by the British Broadcasting Corporation (BBC) on 3rd

January, 2017. The report is marked “WG 9”. The former head of the

British Intelligence Agency, Sir John Sawyers, is reported to have stated as

26

follows: "Bizarrely the stubby pencil and piece of paper that you put your

cross on in the ballot box is actually much more secure than anything

which is electronic."

vi) A true copy of a report entitled “Voting, Vote Capture & Vote counting: Electronic Voting Best Practices” prepared following a Symposium

convened by the Kennedy School of Government at Harvard University

published in June 2004. The report is marked ‘’ WG 10’’. The report states

as follows:

“A Hybrid Of Paper And Electronic Systems Provides An

Effective Voting System.

No technology can solve every problem and mitigate every

risk. Neither electronic nor paper ballots are a panacea. A

hybrid of paper ballots and electronic systems can capture the

benefits of each while avoiding the pitfalls inherent in relying

on one or the other. The ideal system depends on the best

attributes of each, and uses modular construction that allows

for simple integration of the two parts. Of course, if badly

implemented the combination of electronic systems and paper

ballots can offer the problems of both, instead of benefits. An

example of a hybrid is the Massachusetts optical scan system,

which has paper ballots with electronic system to tabulate.

Another alternative is paper ballots with electronic marking

systems.”

52. In a judgment delivered on 21st July 2017 , a three judge bench of the High Court dismissed the said Petition and found, inter alia, that:

“54. It is clear from this judgment that when the electronic system

fails there should be a fallback system to avoid the entire election

falling into shambles. The complementary mechanism in Ghana

closely mirrors our Regulations 69 and 83. This Ghanaian

position is contained in the Manual on Election Adjudication in

Ghana 3rd Edition (DPI Print Ltd, Accra, 2016). Chapter 10(c)

and (d) of that manual deals with failure of the biometric system

in presidential and parliamentary elections.

55. The German Federal Constitutional Court

(Bundesverfassungsgericht) has had occasion to pronounce itself

on electronic voting. In Judgment of the Second Senate of 3rd

March 2009 [BVerfG] 2 BvC 3/07; 2 BvC 4/07, the Court found

that even where electronic voting systems are deployed, the citizen

should still be able to check and ascertain the results reliably

without expert knowledge; and, that it was not possible for a voter

to independently verify the integrity of the elections using the

electronic system

only…………………………………………………………………

……..

101. In view of the foregoing, we find that Regulations 69 and 83

of the Elections (General) Regulations 2012 have the full force of

27

law as they were approved by the Parliament which represents

Kenyans.

102. The petitioner contended that in the absence of a credible

complementary mechanism, the general elections should be

postponed as provided in section 55B of the Elections Act. We

disagree. We take judicial notice that Parliament has been

dissolved. Secondly section 55B applies where an election date has

been appointed but there is (a) likelihood of a serious breach of

peace; (b) a natural disaster; or, (c) occurrence of an electoral

malpractice of such nature and gravity as to make it impossible to

proceed with the election. Thirdly and most importantly, the date

for the general elections provided by Articles 101 and 136 of the

Constitution is cast in stone.

103. The petitioner had also prayed for a declaration that the

identification of voters and transmission of results for the election

to be held on 8th August 2017 be exclusively electronic. We wish

to emphasize again that every citizen has a right under articles

38(3), 81, 83(3) to be registered as a voter, to vote and to have every

vote counted. The electronic system failed during the 2013 general

election. We have already dealt with the question of reliability of

technology from other jurisdictions. Technology can be

susceptible to hackers, software bugs, badly trained frost workers

or power outages which could intentionally or accidentally erase

or alter voting data captured by the machines leading to failure.

104. Finally this Court has to consider the impact or consequences

if the exclusive electronic system fails. It would throw the entire

election into jeopardy and imperil our democracy. We therefore

find that it would not be feasible to declare that the elections to be

held on 8th August 2017 be exclusively electronic.

105. The upshot is that the entire petition is devoid of merit. It is

hereby dismissed with costs to the respondent and the interested

parties.”

I now produce a true copy of the said decision which is annexed hereto and

marked “WG 11”

53. NASA was aggrieved by the said decision and immediately filed Civil Appeal No 258 of 2017 which was heard on 3rd August 2017, barely 5 days before the

general election.

54. During the hearing of the said appeal, it emerged, from documents submitted by the 1st Respondent and admitted in evidence by consent of all parties, that

though NASA had claimed it was not aware of any complementary system put

in place by the 1st Respondent within the contemplation of Section 44A of the

Elections Act, NASA’s leaders, including the Petitioners , had in fact written

to the 1st Respondent in February 2017 enquiring what form the complementary

system envisaged by Section 44A of the Elections Act would take.

28

55. A copy of the said Memorandum is attached at pages 190 to 211 of the documents bound together with Godfrey Osotsi’s 2nd Affidavit. NASA’s

enquiry regarding the 1st Respondent’s interpretation of the words

“complementary system “is at page 196.

56. In a response dated 28th February 2017 addressed to NASA’s leaders, again including the Petitioners, the 2nd Respondent , who had just been appointed

through a rigorous bi-partisan process, informed NASA and its leaders that the

complementary system contemplated by Section 44A of the Elections Act

would be implemented through , inter alia, an amendment to Regulation 69 of

draft Elections ( General) Regulations that the 1st Respondent was developing

in consultation with stakeholders including NASA. A copy of the said letter is

attached at pages 26 to 38 of the documents bound together with Godfrey

Osotsi’s 2nd Affidavit.

57. On 4th August 2017, the Court of Appeal dismissed the said Appeal and reserved the delivery of reasons for its decision to 22nd September 2017. I now produce

a true copy of the said judgment which is marked” WG 12”

58. The effect of the said decisions by the High Court and the Court of Appeal was that when the general election was held on 8th August 2017, Regulation 83 of

the Elections (General) Regulations was the complementary system applicable

in respect of transmission of results in the event technology failed or

experienced difficulties that threatened to violate the provisions of chapter 7 of

the Constitution of Kenya.

59. In the aforesaid cases, NASA was represented by the same advocates who now represent the Petitioners and their knowledge of the decisions of the High Court

and the Court of Appeal must be imputed on the Petitioners. At any length, the

two decisions received considerable coverage in the print and electronic media.

The Petitioners cannot therefore feign ignorance of the fact, as they now purport

to do rather deceitfully, that transmission of results was to be effected

exclusively through electronic means.

60. This Petition is thus an abominable abuse of the process of this Honorable court, an attack and affront to the rule of law as contemplated by Article 10 of the

Constitution of Kenya to the extent that the Petitioners seek to present a feigned

issue for adjudication of this Honorable Court in a matter of such critical public

importance.

61. On 6th August 2017, pursuant to the provisions of Regulation 21 of the Elections (Technology) Regulations, the 1st Respondent posted a list of approximately

11,000 polling stations without 3G coverage. Electronic transmission of results

in this polling stations published in this list would be generally very poor and

difficult at best and impossible in most areas.

62. Consequently, the complementary mechanism set out in Regulation 83 of the Elections (General) Regulations as confirmed by the High Court and the Court

of Appeal. In essence, the said regulation provides a mechanism by which form

34A’s are physically delivered from polling stations to returning officers at

29

constituency level and by which constituency officers deliver form 34B’s to the

National Tallying Centre in Nairobi.

63. The self-evident wisdom of this course of action is itself the product of the decision of this Honorable court in the decision of this court in the case of

RAILA ODINGA & 5 OTHERS V INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION & 3 OTHERS [2013] eKLR, wherein the

Court at paragraph 233 of its judgment stated that –

“We take judicial notice that, as with 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 linewomen to

notice….

“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…

“From case law, and from Kenyan’s electoral history, it is apparent that

electronic technology has not provided perfect solution. 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 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

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. It follows that the Petitioner’s case, insofar as it

attributes nullity to the Presidential election on grounds of failed technology

devices, is not sustainable…”

64. In light of the aforesaid compelling facts and decisions of our courts, I am mystified and baffled beyond comprehension why the Petitioners, who falsely

allege that the Respondents systems were hacked on 8th August 2017, still

doggedly persist in arguing that electronic transmission of results is the only

mode of transmitting results acceptable to them.

65. In essence, the orders now sought are an attempt by the Petitioners, post-facto, to procure through the back door what they Appellant failed to do in parliament,

in the High court and in the Court of Appeal.

66. The Petitioners are cynically trying to retrospectively legislate NASA’s electoral agenda through this Honourable court and retrospectively apply that

interpretation of the law to an election conducted under a very different

regulatory and legal regime. They should not be allowed to do so.

30

Recording, Tallying and Declaration of results

67. As far as I am aware the process of recording votes, tallying and declaration of results was conducted and done in full and/or substantial compliance with the

provisions of the Constitution and all electoral laws.

68. Further, to the best of my knowledge, based on reports by Jubilee party agents, observers and monitors and the 1st Respondent, the results announced on 11th

August 2017 were indeed accurate and verifiable 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, the Elections Act and

the Elections (General) Regulations, 2012.

69. Nearly all local and international observers and monitors who were accredited by the 1st Respondent have issued preliminary reports stating that the election

was free, fair and credible notwithstanding the minor irregularities and other

logistical problems experienced during the election process.

70. The 1st Respondent has posted on its website and on a portal available to the public scanned copies of each and every Form 34A and B received at Bomas of

Kenya by the 2nd Respondent which upon collation, demonstrates that the

election results announced on 9th August 2017 were accurate, verifiable,

transparent and lawful.

71. I nevertheless wish to state as follows in light of the numerous false and baseless allegations set out in the Affidavits sworn by Dr Nyangasi Oduwo alleging that

Form 34a’s contain staggering and fatal irregularities. He has classified the

alleged irregularities as follows:

a. Form 34A’s that allegedly do not bear the 2nd Respondents official stamp;

b. Forms 34As that allegedly have not been signed by the Presiding Officer and Deputy Presiding Officers

c. Results which allegedly do not tally mathematically;

d. Forms 34As that allegedly do not have names or the signature of the party agents, and without reasons therefor from the Presiding Officers;

e. Forms where the Presiding Officer allegedly signed for more than one polling station;

f. Forms 34As that were allegedly signed by ungazetted Presiding Officers;

g. Forms 34As that allegedly emanate from ungazetted Polling Stations;

h. Forms downloaded from the 1st Respondent’s portal that are allegedly unclear or illegible ,

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72. My analysis, conducted with the help of a team of JP’s electoral tallying experts, has confirmed that in an overwhelming number of the cases cited by Dr Oduwo,

the forms do not manifest the alleged irregularities he cites.

73. Though I have caused detailed reports to be compiled in response to each and every allegation made in Dr Oduwo’s affidavit regarding the aforesaid issues,

I would nevertheless like to make the following observations:

a. Neither the Elections Act nor the Election (General) Regulations require that Form 34 A should bear the 1st Respondents stamp.

b. The failure of an agent to sign forms or attend his/her duties at the counting hall does not invalidate the results. Regulations 79(3), (4), (5)

and (7) state as follows:

“(3) Where any candidate or agent refuses or otherwise fails

to sign the declaration form, the candidate or agents

shall be required to record the reasons for the refusal

or failure to sign.

(4) Where a candidate or an agent refuses or fails to record

the reasons for refusal or failure to sign the declaration

form, the presiding officer shall record the fact of their

refusal or failure to sign the declaration form.

(5) Where any candidate or agent of a candidate is absent,

the presiding officer shall record the fact of their

absence.

(6) The refusal or failure of a candidate or an agent to sign

a declaration form under sub regulation (4) or to record

the reasons for their refusal to sign as required under

this regulation shall not by itself invalidate the results

announced under sub regulation (2)(a).

(7) The absence of a candidate or an agent at the signing

of a declaration form or the announcement of results

under sub regulation (2) shall not by itself invalidate

the results announced.”

c. Dr Oduwo purports to make expert opinions on handwriting though he is not a forensic document examiner and prefaces his assertions on

alleged similar handwriting with words phrases like “ the handwriting

seems” or “ the handwriting appears to be the same”.

d. I am informed by the 3rd Respondent’s advocate on record, and I believe such advice to be correct, that Section 50 of the Evidence Act states as

follows:

“Opinion as to handwriting

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(1) When the court has to form an opinion as to the person by

whom any document was written or signed, the opinion of any person

acquainted with the handwriting of the person by whom it is supposed

to be written or signed that it was or was not written or signed by that

person, is admissible.

(2) For the purposes of subsection (1) of this section, and without

prejudice to any other means of determining the question, a person is

said to be acquainted with the handwriting of another person when he

has seen that person write, or when he has received documents

purporting to be written by that person in answer to documents written

by himself or under his authority and addressed to that person, or

when in the ordinary course of business documents purporting to be

written by that person have been habitually submitted to him.”

e. Dr Oduwo’s bare statements are thus of absolutely no probative value and are informed by confirmation bias rather than reality.

f. I am also alive to the findings of this court in the case of RAILA ODINGA & 5 OTHERS V INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION & 3 OTHERS [2013] eKLR to the

effect that: “It is rightly argued by the Respondents, in our opinion,

that the Court must be alive to the fact that most polling stations are

in the rural areas, where the primary-school polling stations are

dilapidated, and the supply of electricity, to-date, is a distant dream.

Yet voters still go to such polling stations to exercise their right to vote,

and to discharge their civic duty. Of this fact, the Court will take

judicial notice, in deciding whether Presidential elections can be

invalidated due to non-compliance with regulations requiring

electronic transmission.”

g. There are no significant numerical discrepancies between Form 34A and Form 34B. I now produce a report that demonstrates that after

reconciling discrepancies in the forms attached to Dr Oduwo’s affidavit,

the net effect is that the Petitioners tally improves by 595 votes while

that of JP’s candidates decreases by 1199 votes. In the context of the

margin of votes cast for the 3rd Respondent and those cast for the I now

produce a true copy of detailed report, in both hard and soft copy, which

is marked “WG 13.”

h. An analysis of all 290 form 34B’s has revealed that, contrary to Dr Oduwo’s assertions in his affidavit, NASA agents signed the vast

majority of the said forms which they were supplied with at Bomas of

Kenya in my presence. I now produce a true copy of detailed report, in

both hard and soft copy, which is marked “WG14 ”

i. An overwhelming majority of the allegations set out at paragraphs 11 to 230 of Dr Oduwo’s are false and predicated on fictitious documents,

erroneous and extravagantly creative interpretation of regulations,

jaundiced opinions which Dr Oduwo is not competent to issue, outright

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lies and a fixation with the role of electronic transmission of forms. I

now produce a true copy of detailed report, in both hard and soft copy,

which is marked “WG 15”

Rejected Votes

74. The Elections ( General ) Regulations define the terms “spoilt votes” and “ rejected votes” as follows:

Spoilt ballot paper

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 officer and providing

to the satisfaction of such officer 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.

Rejected ballot papers

(1) Every rejected ballot paper shall be marked with the word

“rejected” by the presiding officer, and, if an objection is made by

a candidate or an agent to the rejection, the presiding officer shall

add the words “rejection objected to” and shall be treated as

rejected for the purpose of the declaration of election results at the

polling station.

(2) The presiding officer 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 officer 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 final.

(3) After the counting of votes is concluded, the presiding

officer 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 identified; 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.

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75. 34C, which is the statutory basis upon which the Presidential results were announced indicates that there were 81,685 rejected votes. I now produce a true

copy of Form 34C obtained from the 1st Respondents website which is marked

“WG 16 ”

76. The public portal on which the electronic results were posted however indicates that there were 403,495 rejected votes.

77. In light of this self-evident discrepancy i have undertaken a thorough analysis which helped me and my party explain where the discrepancy arose from.

78. My analysis has revealed that in 688 polling stations, accounting for 229, 869 out of 294,271 registered voters in the affected stations, the number of reported

rejected votes is equal to the number of registered voters in those polling

stations. I now produce a listing of the said polling stations which is marked “

WG 17”

79. The said stations are spread out all over the country, and it is clear that electoral officers , in what are obviously honest and/or genuine instances of mis-posting,

inserted the registered number of voters in their respective polling stations in

the field reserved for rejected votes in the KIEMS results transmission kits since

the field or slot for registered voters was already pre-filled and incapable of

manipulation as one of the fraud / ballot stuffing prevention innovations

implemented in electoral planning this year.

80. The error was quite easy to make since the manual/paper form 34A has the number of registered voters in a polling station as the first slot an electoral

officer fills into form 34A. The aforesaid 688 electoral officers, under pressure

and some under less than ideal lighting conditions, clearly inserted the number

of registered votes set out in the manual form 34A into the KIEMS kit slot

reserved for rejected votes when transferring the results from the manual form

into electronic an electronic document.

81. The official results were nevertheless declared on the basis of results collated from 290 form 34B’s which were themselves compiled from manual form34A’s

which did not have this error having been transmitted as scanned copies of a

manual document or delivered to the returning Officer’s at Constituency level

physically. Thus, no prejudice was suffered by any candidate.

Nyando Constituency Results

82. Form 34C , which is the basis upon which the results were declared by the 2nd Respondent pursuant to the provisions of Regulation 87(3)(e) of Elections

(General ) Regulations , does not include the results for Nyando constituency

where the Petitioner had 60,715 votes against the 3rd Respondents 214 votes.

83. Dr Oduwo cites this as a fatal irregularity and an attempt to suppress the Petitioners final vote count. This is neither true nor founded in statute. Indeed,

the opposite is true.

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84. The proviso to Regulation 87 (3) states that: “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) (b) of the

Constitution.”

85. As stated above, there were 15 180 819 valid votes cast in the presidential election. 60,715 votes , which the Petitioners received from Nyando, work out

at 0.39% of the valid votes cast for the presidential election and would not have

made a material difference within the contemplation of the proviso to

Regulation 87(3) reproduced above in full. The 2nd Respondent was therefore

within the four corners of the law when he declared the final result on 11th

August 2017.

Alleged disparity between presidential votes and the other 5 elections

86. Dr Oduwo alleges, in his affidavit, that there is a large and suspicious disparity between the votes recorded for the presidential election and those of other

elections and the gubernatorial election in particular.

87. Again, Dr Oduwo deliberately embellishes the facts in an attempt to secure an unjustified advantage for the 1st Petitioner. I now produce a report indicating

areas where votes cast for the presidential election were less than other

elections. The report is marked “WG 18”

88. A basic analysis of the results indicates that in 94 constituencies, scattered all over the country, voters cast more votes in one or more of the other 5 elections

held on 8th August 2017 than in the presidential election. Details of the said

constituencies and the election in which the presidential vote was not the highest

are as follows:

Constituency Name

Position

1 NYALI Governor

2 LIKONI Senator

3 MVITA Senator

4 MSAMBWENI Parliament

5 LUNGALUNGA Parliament

6 KINANGO Parliament

7 GANZE Parliament

8 BURA Parli