constitutional violations would be a dereliction of duty and we refuse to
accept the invitation to do so however popular the invitation may seem.
Therefore, however burdensome, let the majesty of the Constitution
reverberate across the lengths and breadths of our motherland; let it bubble
from our rivers and oceans; let it boomerang from our hills and mountains;
let it serenade our households from the trees; let it sprout from our
institutions of learning; let it toll from our sanctums of prayer; and to those,
who bear the responsibility of leadership, let it be a constant irritant.
[400] Have we in executing our mandate lowered the threshold for proof
in presidential elections? Have we made it easy to overturn the popular will
of the people? We do not think so. No election is perfect and technology is
not perfect either. However, where there is a context in which the two
Houses of Parliament jointly prepare a technological roadmap for conduct
of elections and insert a clear and simple technological process in Section
39(1C) of the Elections Act, with the sole aim of ensuring a verifiable
transmission and declaration of results system, how can this Court close its
eyes to an obvious near total negation of that transparent system?
[401] In keeping with our pronouncement regarding the burden and
standard of proof in election petitions, we are therefore satisfied that the
petitioners have discharged the legal burden of proof as to squarely shift it
to the 1st and 2nd respondent. We are also of the firm view that having so
shifted, the burden has not in turn been discharged by the 1st and 2nd
respondent as to raise substantial doubt with regard to the petitioners’ case.
[402] For the above reasons, let this Judgment then be read in its proper
context; the electoral system in Kenya today was designed to be simple and
verifiable. Between 8th August, 2017 and 11th August, 2017, it cannot be said
Presidential
Petition
No.
1
of
2017
175
|
P a g e
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