[60] On the basis of the averments in the affidavit of Winnie Guchu, therefore, it was contended for the 3rd respondent that there was no legal obligation that the data entered into the KIEMS kits must be sent simultaneously with images of the Forms 34A. Consequently, no legal sanction ought to attach where there is a failure to simultaneously transmit the result data and the scanned image of the Form 34A. Accordingly, the 3rd respondent dismissed the petitioners’ contention that there was a legitimate expectation that the data and the Forms would be transmitted concurrently. In this regard, Ms. Guchu deponed that under Section 44A of the Elections Act, IEBC has a statutory discretion to use a complementary mechanism where technology either fails to work or is unable to meet the constitutional threshold of what a free and fair election should constitute. [61] Mr. Nyamondi, counsel for the 1st respondent outlined to the Court the mode of the transmission process of the results and submitted that after the manual filling in of the Form 34A, the Presiding Officers then keyed in the results into the KIEMS kit, took the image of the Form 34A and then simultaneously transmitted the same to the constituency and national tallying centres. In his view however, the figures in the KIEMS kit had no legal status, and they did not go into the determination of the outcome of the result which could only be authenticated by Forms 34A and 34C. [62] The respondents denied the petitioners’ allegation that the results entered into the KIEMS kits varied from the results on Forms 34A in respect of more than 10,000 polling stations and further urged that the ‘statistics’ entered into the KIEMS kits was not the result and is therefore not comparable with the results recorded in Forms 34A. And that if there were any discrepancies in the statistics entered in the KIEMS kits, the same Presidential  Petition  No.  1  of  2017                                                                                                                                                                                                            24  |  P a g e    

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