[54] All the petitioners have anchored their arguments for the nullication of the 9th August Presidential Election, inter alia, on the walk-out from the Bomas by the four Commissioners. They contend that by rejecting IEBC’s results on grounds of opaqueness of the verication and tallying process, they called into question, the credibility of the entire election. They further submitted that being in the majority out of the seven-member Commission, their view should prevail and the election should be nullied. It is the petitioners’ argument, therefore, that a dysfunctional Commission cannot deliver a credible election. [55] We note that apart from their eleventh-hour denunciation of the verication and tallying process, and their averments regarding the conduct of the Chairperson, the four Commissioners have not placed before this court, any information or document showing that the elections were either compromised or that the result would have substantially diered from that declared by the Chairperson of IEBC. Critically, they have not explained why they participated in a verication process when they knew that it was opaque up until the last minute. Indeed, at the Serena Hotel press brieng, the four Commissioners acknowledged that thus far, the entire election had been managed eciently and credibly. The Chairperson on his part, did not make matters any better by maintaining a stoic silence even as things appeared to be falling apart. All this in our view, points to a serious malaise in the governance of an institution entrusted with one of the monumental tasks of midwing our democracy. An institution that obviously needs far-reaching reforms, of which we shall say more in our detailed reasons. [56] But are we to nullify an election on the basis of a last-minute boardroom rapture (the details of which remain scanty and contradictory) between the Chairperson of the Commission and some of its members? In the absence of any evidence of violation of the Constitution and our electoral laws, how can we upset an election in which the people have participated without hindrance, as they make their political choices pursuant to article 38 of the Constitution? To do so, would be tantamount to subjecting the sovereign will of the Kenyan people to the quorum antics of the IEBC. This we cannot do. Clearly the current dysfunctionality at the Commission impugns the state of its corporate governance but does not aect the conduct of the election itself. [57] In view of the foregoing, we are satised that notwithstanding the divisions apparent between the Chairperson and the four Commissioners, IEBC carried out the verication, tallying, and declaration of results in accordance with article 138(3)(c) and (10) of the Constitution. (vii) Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with Article 138(4) of the Constitution [58] The 1st, 2nd and 3rd petitioners averred that the 1st respondent did not garner 50% + 1 of the total votes cast and therefore did not meet the threshold provided by article 138(4)(a) of the Constitution. They anchored their claims on the basis that in order to determine whether a candidate has attained 50% + 1 of the votes cast, this ought to be calculated based on the total number of votes cast excluding rejected votes. They urged that 50% of 14,353,165 which in their view were the valid votes cast, amounted to 7,176,582.77 votes. They contended that by attaining 7,176,141 votes, the 1st respondent did not meet the constitutional threshold to be declared President-elect. [59] Supporting the claim that the 1st respondent did not meet the 50%+1 constitutional threshold was the 6th petitioner. His contention was founded on the backdrop of a press brieng issued by the Chairperson of IEBC after the ocial closure of voting on August 9, 2022. According to the 6th petitioner, the Chairperson of IEBC announced that the voter turnout was 65.4% of the total number of registered voters, based on the verication of the KIEMS kits which were functional during the kenyalaw.org/caselaw/cases/view/240578/ 23