3. 4. 5. 6. 7. 8. 9. 10. The technology deployed by IEBC did not fail the standard of article 86(a) of the Constitution on integrity, veriability, security and transparency for the following reasons: 1. whereas it was true that the KIEMS kit failed in 235 polling stations, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly lled. That happened successfully in Kibwezi West Constituency and parts of Kakamega County. 2. While the Audit Report was released to the public seven days before the August 9, 2022 election, the register of voters was used at the election without any apparent anomalies. 3. Smartmatic was procured to provide the necessary technological infrastructure as IEBC did not have the capacity to do so. No credible evidence meeting the requisite standard of proof of access to the system by unauthorized persons was adduced by the petitioners. 4. The Scrutiny Report (the Report) prepared by the Registrar of the Supreme Court (the Registrar) did not reveal any security breaches of the IEBC’s Results Transmission and Presentation System (RTS). 5. IEBC successfully deployed a Biometric Voter Register (BVR) system which captured unique features of a voter’s facial image, ngerprints and civil data, to register and update voter details across the country and in the diaspora. Those features were unique to each voter. 6. In compliance with section 6A of the Elections Act, 2011, IEBC opened the register of voters for verication of biometric data by members of the public for a period of 30 days. Thereafter, the Register was revised to address issues arising from the verication exercise. KPMG then audited the register and the inconsistencies and inaccuracies identied during the Audit were successfully addressed. No credible evidence was presented to prove that anyone accessed the RTS to intercept, detain or store Forms 34A temporarily before they were uploaded onto the Public Portal. The allegation that 11,000 Forms 34A were aected by staging was not proved. The allegation that IEBC, its ocials and strangers used a tool to tamper with the Forms 34A before converting them to the Portable Document Format (PDF) format that eventually appeared on the Public Portal was suciently explained when IEBC demonstrated how KIEMS captured and transmitted the image of Forms 34A. The allegation was dismissed. The transmission logs produced by the petitioners were of no probative value after the ICT scrutiny. The Registrar of the Supreme Court’s Report showed that the original Forms 34A from the contested polling stations which were allegedly intercepted were exactly the same as those on the Public Portal and the certied copies presented to the Supreme Court under section 12 of the Supreme Court Act, 2011. The allegation that the integrity of the Public Portal was compromised was disproved by evidence of consistent attributes such as unique time stamps, uniform PDF conversions at the polling stations, correct polling station mapping and consistent KIEMS reporting from verication to transmission of results. The RTS was congured on a Virtual Platform Network (VPN) and the SIM cards locked to a specic polling station. The server was also congured to accept results only from authorized and properly mapped KIEMS kit. The petitioners failed to produce credible evidence to the contrary. A review of some of the logs presented as evidence of staging showed that they were either from logs arising from the 2017 Presidential Election or were outright forgeries. There was no evidence of a man in the middle server congured to the IEBC’s VPN network; and no evidence was produced to show that the chairperson of IEBC and sta were part of the alleged conspiracy to stage the transmission process. There were no signicant dierences captured between the Forms 34A uploaded on the public portal and the physical Forms 34A delivered to Bomas (National Tallying Center) that would have aected the overall outcome of the presidential election. kenyalaw.org/caselaw/cases/view/240578/ 7