[361] The above categorical statement differs completely with the
abundance of caution submission by Mr. Muite SC and the ‘not in the law’
argument by the IEBC.
[362]
In the above context, we now turn to examine the applicable
statutory provisions in this regard. As pointed out by the petitioners, there
is a reasonable expectation that all the forms ought to be in a standard form
and format; and though there is no specific provision requiring the forms to
have watermarks and serial numbers as security features, there is no
plausible explanation for this discrepancy more so when Immaculate
Kassait deponed that ALL forms had those features.
[363] There is another set of discrepancies relating to 32 Forms not being
signed by agents, 103 forms where the ‘hand over’ section had not been
filled and 287 where the ‘take over’ section had not been filled.
[364] Regulation 87(1)(b) of Elections (General) Regulations, 2012 as read
with Section 39(1A)(i) of the Elections Act deals with Forms 34B in the
following terms:
“87. (1) The constituency returning officer shall, as soon as
practicable
(a)…
(b) deliver to the National tallying centre all the Form
34B from the respective polling stations and the
summary collation forms.”
[365] The schedule provides for a sample of the format of the Form 34B.
As is evident from the schedule, the ‘Hand Over’ section is filled when the
Presidential
Petition
No.
1
of
2017
158
|
P a g e
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