[7]
2.
Whether there was interference with the uploading and transmission of Forms 34A from the
Polling Stations to the IEBC Public Portal;
3.
Whether there was a dierence between Forms 34A uploaded on the IEBC Public Portal and
the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents
at the Polling Stations;
4.
Whether the postponement of Gubernatorial Elections in Kakamega and Mombasa counties,
Parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South Constituencies
and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi
South Constituency resulted in voter suppression to the detriment of the Petitioners in
Petition No E005 of 2022;
5.
Whether there were unexplainable discrepancies between the votes cast for presidential
candidates and other elective positions;
6.
Whether the IEBC carried out the verication, tallying, and declaration of results in accordance
with article 138(3)(c) and 138(10) of the Constitution;
7.
Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with
article 138(4) of the Constitution;
8.
Whether there were irregularities and illegalities of such magnitude as to aect the nal result
of the Presidential Election;
9.
What reliefs and orders can the court grant/issue?
Having considered and deliberated upon the consolidated petition, the attendant responses,
submissions and the amici curiae briefs we now make the following determination:
(i) Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met
the standards of integrity, veriability, security and transparency to guarantee accurate and
veriable results
[8]
As noted in the introduction, lack of trust in the electoral system has endured in Kenya for a long
time. This led to the introduction of electoral technology following the recommendations made by the
Independent Review Commission on the General Elections held on the December 27, 2007 (Kriegler
Commission Report). The Report recommended integration of technology into Kenya’s electoral
processes for registration, identication of voters and transmission of results. These were enacted in
section 44 of the Elections Act, 2011. By this statute, IEBC is enjoined to adopt technology in the
electoral process. As a consequence, the IEBC developed a technology known as Kenya Integrated
Electoral Management System (KIEMS) making Kenya’s election process hybrid as it employed both
technology and manual processes.
[9]
The 1st, 3rd and 4th petitioners in the consolidated Petition, challenge the technology used by IEBC
during the 2022 General Election. They plead that the manner in which technology was deployed and
utilized fell short of the prescribed constitutional and statutory standards. As regards the audit of the
Register of Voters, they urge that IEBC, pursuant to its Elections Operations Plan, committed itself to
conducting an audit of the Register of Voters by March 31, 2022. To the contrary, they allege, it only
publicly availed the audit report on its website on August 2, 2022, 7 days to the election.
[10]
In this report, it was noted that the auditors established serious gaps and risks to the electoral
process including; numerous cases of change of voting stations without knowledge or approval of the
kenyalaw.org/caselaw/cases/view/240578/
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