27.
28.
29.
30.
31.
silence even as things appeared to be falling apart. There was a serious malaise in the governance of an
institution entrusted with one of the monumental tasks of midwing our democracy. An institution
that needed far-reaching reforms.
To nullify an election on the basis of a last-minute boardroom rapture between the chairperson
of the Commission and some of its members in the absence of any evidence of violation of the
Constitution and electoral laws; to upset an election in which the people had participated without
hindrance, as they made their political choices pursuant to article 38 of the Constitution would
be tantamount to subjecting the sovereign will of the Kenyan people to the quorum antics of the
IEBC. The court was incapable of such action. The dysfunctionality at the IEBC impugned the state
of its corporate governance but did not aect the conduct of the election itself. Notwithstanding
the divisions apparent between the chairperson and the 4 Commissioners, IEBC carried out the
verication, tallying and declaration of results in accordance with article 138 (3)(c) and (10) of the
Constitution.
The case made by the 6th petitioners concerned a data-specic threshold enunciated under article
138(4) of the Constitution without the attainment of which, there could be no declaration. That was
the ultimate yardstick for determining the winner in a presidential contest. Rejected votes could not
be taken into account when calculating whether a presidential candidate attained 50% +1 of votes cast
in accordance with article 138 (4) of the Constitution.
In the case of data-specic electoral requirements (such as those specied in article 138(4) of the
Constitution, for an outright win in the presidential election), the party bearing the legal burden
of proof had to discharge it beyond any reasonable doubt. The assertion by the 6th petitioner that
the percentage voter turnout was predicated on the uncorrected percentage given by the chairperson
of IEBC, was negated by evidence adduced to prove the correction. The 6th petitioner based his
percentage of voter turnout on the total number of registered voters while the chairperson of IEBC
made reference, in the press brieng, to the number of registered voters who were identied through
the KIEMS kits, progressively. The rounding o done by IEBC and its chairperson was correct.
The petitioners did not provide a watertight case to warrant the setting aside of the results of the
presidential election on the basis of not having met the threshold provided under article 138(4)(a) of
the Constitution. The formula predicated on the number of voters identied through the KIEMS kit
progressively and used by IEBC and its chairperson to generate a percentage of 64.76% was correct.
The chairperson of IEBC applied the formula in article 138(4) of the Constitution which was:
Total votes cast (less rejected votes)
2
= 50% +1 vote
Given the numbers that were presented to us by IEBC and its chairperson, that would translate to:
14, 213, 137
2
+ 1 = 7,106,569
31. 7,106, 569 was less than 7,176,141 which represented the number of votes received by the 1st respondent.
On the basis of the above formula and from the numbers provided by IEBC and its chairperson, and the
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