[43]
Finally, a General Election in Kenya comprises of six (6) dierent and separate elections held
concurrently on the same day. Such elections are held by secret ballot and one cannot predetermine
the voter turnout or how voters will vote in each election. None of the parties has agged anything so
signicant that it would have aected the outcome of the Presidential Election vis á vis the other ve
elections held on that day. We nd therefore that there were no unexplainable discrepancies between
the votes cast for Presidential candidates and other elective positions.
(vi) Whether the IEBC carried out the verication, tallying, and declaration of results in accordance
with Article 138(c) and 138 (10) of the Constitution
[44]
This issue arises from the pleadings in all the Petitions as consolidated. Based on the said pleadings, the
adavits sworn in support thereof, and the written and oral submissions by the parties, two viewpoints
regarding the meaning, scope, and application of article 138(3)(c) and (10) of the Constitution have
been advanced.
[45]
On the one hand, the petitioners submit that pursuant to the foregoing provisions, the role of verifying
and tallying of votes as received from polling stations countrywide, is vested in the Commission as a
corporate entity and not the Chairperson of the Commission. It is their argument that the Chairperson
cannot undertake this task to the exclusion of other Commissioners. They submit that the language
of article 138(3)(c), does not envisage a situation where the Chairperson, can arrogate to himself
unfettered authority to verify and tally the results at the National Tallying Centre, without involving
the other Commissioners. Such action, they contend, would not only be unconstitutional, but would
be sucient ground without more, to nullify an election of a President-elect. In support of their
argument, the petitioners cite the Court of Appeal decision in IEBC v Maina Kiai & 5 others as
armed by this court in Raila 2017. The petitioners further submit that regulation 87(3) of the
Elections (General) Regulations is unconstitutional, to the extent that it purports to vest the power of
verication and tallying in the Chairperson of IEBC.
[46]
On the other hand, the 1st, 2nd and 3rd respondents submit that the power to verify, tally, and declare
results of a Presidential Election at the National Tallying Centre, is the exclusive preserve of the
Chairperson of IEBC. According to them, there is nothing unconstitutional about regulation 87(3) of
the Elections (General) Regulations. The said regulation, the respondents submit, makes no mention
of Commissioners, other than the Chairperson. At any rate, the respondents argue, article 138 (3) (c) of
the Constitution, does not envisage a situation where it is the Commissioners who personally undertake
the task of verifying and tallying the results as entered onto the thousands of Forms 34A. Such an
undertaking, would be humanly impossible, they submit. For good measure, the respondents submit
that section 11A (a) of the IEBC Act provides that the Chairperson and members of the Commission
are responsible for the formulation of policy and strategy of the Commission and oversight. In their
view, the Act does not contemplate a situation where Commissioners would be directly involved in
the verication and tabulation of Presidential Election results. The task of verication and tallying,
submit the respondents, is executed by sta of the Commission under the direction and supervision
of the Commission Secretary, who in turn reports to the Chairperson.
[47]
As to whether the Chairperson acted unilaterally in verifying and tallying the Presidential Election
results at the National Tallying Centre, the petitioners claim that indeed, this is what happened. It
is the petitioners’ case that the Chairperson, published Gazette Notice No 4956 of 2022 in which
he designated himself as the ‘Presidential Returning Ocer’, a position unknown in law and the
Constitution. Having done so, the petitioners state that the Chairperson proceeded to conduct the
verication and tallying process, to the exclusion of the other Commissioners each of whom he had
assigned peripheral roles unrelated to the verication and tallying exercise.
kenyalaw.org/caselaw/cases/view/240578/
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