logs or even view them. The exercise was therefore a complete
violation of the Court Order and the access was not useful to the
parties or the Court.
[279] It is clear from the above that IEBC in particular failed to allow
access to two critical areas of their servers: its logs which would have
proved or disproved the petitioners’
claim of hacking into the system and
altering the presidential election results and its servers with Forms 34A and
34B electronically transmitted from polling stations and CTCs. It should
never be lost sight of the fact that these are the Forms that Section 39(1C)
specifically required to be scanned and electronically transmitted to the
CTCs and the NTC. In other words, our Order of scrutiny was a golden
opportunity for IEBC to place before Court evidence to debunk the
petitioners’ said claims. If IEBC had nothing to hide, even before the Order
was made, it would have itself readily provided access to its ICT logs and
servers to disprove the petitioners’ claims. But what did IEBC do with it? It
contumaciously disobeyed the Order in the critical areas.
[280] Where does this leave us? It is trite law that failure to comply with a
lawful demand, leave alone a specific Court Order, leaves the Court with no
option but to draw an adverse inference against the party refusing to
comply.113 In this case, IEBC’s contumacious disobedience of this Court’s
Order of 28th August, 2017 in critical areas leaves us with no option but to
accept the petitioners’
claims that either IEBC’s IT system was infiltrated
and compromised and the data therein interfered with or IEBC’s officials
113
C.M.A.W.M
v. P.A.W.M. Civil Appeal No. 2 of 2014; [2014] eKLR (CA).
Presidential
Petition
No.
1
of
2017
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