20. 21. 22. 23. 24. 25. 26. There was no basis for the court to conclude that the postponement of the elections aected voter turnout as a consequence of which the 1st petitioner, alone, as a presidential candidate suered a disadvantage. The nature of the ballot being an individual decision and secret, there could be other variables to which the turnout in the named units could be attributed. The 2022 General Election recorded one of the lowest turnout since the reintroduction of multi- party political system, some 30 years ago. If there was a low voter turnout, it aected all the six categories of candidates and its explanation lay elsewhere but certainly not a calculated suppression. There was no nexus between the postponement of elections and voter turnout in the aected units, the claim was a red herring. There was no proof that the postponement resulted in voter suppression to the detriment of the 1st petitioner. A person who asserted a fact had to prove it. The burden was cast upon the 1st petitioner to demonstrate that there were instances of ballot stung of such a magnitude as to justify the nullication of the presidential election. Ballot stung, which was the illegal addition of extra ballots, was a type of electoral fraud aimed at swinging the results of an election towards a particular direction. Not a single document had been presented by the 1st petitioner to prove systematic ballot stung. A gure of 33,208 votes relied on in that claim was based on unproven hypothesis that since the number of votes cast for President was higher than those for the other positions then, without more, it had to follow that there was fraud. Fraud was a serious criminal oence and had to be proved beyond reasonable doubt. Under section 5(n) of the Election Oences Act, it was an oence for a person to vote more than once in any election. IEBC had proered a plausible explanation for the vote dierential. There were categories of voters who only voted for the President, such as prisoners and Kenyans in the diaspora. There were an insignicant number of stray votes, whose combined eect could not justify nullication of the election. A general election in Kenya comprised of 6 dierent and separate elections held concurrently on the same day. Such elections were held by secret ballot and one could not predetermine the voter turnout or how voters would vote in each election. None of the parties had agged anything so signicant that it would have aected the outcome of the presidential election vis á vis the other ve elections held on that day. There were no unexplained discrepancies between the votes cast for presidential candidates and other elective positions. Pursuant to article 138(3)(c) of the Constitution, the power to verify and tally presidential election results as received at the National Tallying Centre, vested not in the chairperson of IEBC, but in the Commission itself. The latter carried out the exercise through its secretariat sta, technical personnel, and any other persons hired for that purpose under the oversight and supervision of the chairperson, and other members of the Commission. The chairperson of the IEBC could not arrogate to himself the power to verify and tally the results of a presidential election, to the exclusion of the other members of the Commission. Under Article 138(10) of the Constitution, although the power to declare the result of a presidential election after verication and tallying, was vested in the chairperson, he did so only as a delegate of the Commission. To the extent that regulation 87(3) of the Elections (General) Regulations purported to vest the power of verifying and tallying presidential election results, as received at the National Tallying Centre, solely on the chairperson to the exclusion of other members of the Commission, the same was contrary to and inconsistent with the provisions of the Constitution. 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 had not placed before the 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. They had not explained why they participated in a verication process when they knew that it was opaque up until the last minute. The 4 Commissioners acknowledged that the entire election had been managed eciently and credibly. The chairperson did not make matters any better by maintaining a stoic kenyalaw.org/caselaw/cases/view/240578/ 9