accordance with the Constitution and the applicable law rendering the
declared result invalid, null and void. In the circumstances, prayer (i) is
allowed as prayed. Prayers (j) and (k) are a consequence of the declaration
in prayer (i) and are also allowed.
[386] Regarding prayer (l), we have shown that IEBC did not conduct the
8th August 2017 presidential election in conformity with the Constitution
and electoral law. Irregularities and illegalities were also committed in a
manner inconsistent with the requirement that the electoral system ought
to be inter alia simple, verifiable, efficient, accurate and accountable.
Although the petitioners claimed that various electoral offences were
committed by the officials of the 1st respondent (IEBC) no evidence was
placed before us to prove this allegation. What we saw in evidence, was a
systemic institutional problem and we were unable to find specific finger
prints of individuals who may have played a role in commission of
illegalities.
We are therefore unable to impute any criminal intent or
culpability on either the 1st and 2nd respondent, or any other commissioner
or member of the 1st respondent. We are similarly unable to find any
evidence of misconduct on the part of the 3rd respondent. The prayer is
therefore disallowed.
[387] On costs, we are aware that costs generally follow the event, but the
present petition has brought to the fore the need for IEBC to adhere strictly
to its mandate and not to exhibit the casual attitude it did in the conduct of
the impugned election and in defence of this petition. It is a heavily public
funded constitutional organ and to burden Kenyans tax payers with
litigation costs would be a grave matter which we deem unnecessary in this
petition. Let each party therefore bear its own costs.
Presidential
Petition
No.
1
of
2017
169
|
P a g e
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