[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
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