[48] On his part, the Chairperson of IEBC submits that although he has the exclusive authority to verify and tally the Presidential Election results as received at the National Tallying Centre, he did involve all the other Commissioners in the exercise, before eventually declaring the nal result. He submits that he did this in the spirit of teamwork. The Chairperson of IEBC states that indeed, the four Commissioners were involved in the preparation of the 9th August General Elections from the time of their swearing into oce, all the way to the verication and tallying of the results at the National Tallying Centre, until they withdrew from the exercise, just when he was set to declare the nal result. [49] Having considered all parties’ submissions, we nd that, pursuant to article 138(3)(c) of the Constitution, the power to verify and tally Presidential Election results as received at the National Tallying Centre, vests not in the Chairperson of IEBC, but in the Commission itself. The latter carries out this exercise through its secretariat sta, technical personnel, and any other persons hired for that purpose under the oversight and supervision of the Chairperson, and other members of the Commission. In line with this Court’s decision in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR (Raila 2017) and the Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR (Maina Kiai Case), we also nd that the Chairperson cannot arrogate to himself the power to verify and tally the results of a Presidential Election, to the exclusion of the other members of the Commission. Indeed, article 138(10) of the Constitution, although the power to declare the result of a Presidential Election after verication and tallying, is vested in the Chairperson, he does so only as a delegate of the Commission. [50] Consequently, to the extent that Regulation 87(3) of the Elections (General) Regulations purports to vest the power of verifying and tallying Presidential Election results, as received at the National Tallying Centre, solely on the Chairperson to the exclusion of other members of the Commission, the same is contrary to and inconsistent with the provisions of the Constitution. [51] That said, we however take cognizance of the fact that the 5th, 6th, 7th and 8th respondents herein, actively participated in the verication and tallying exercise, from the beginning, up-to and until just before the declaration of the result by the Chairperson. They took turns announcing the results as veried and tallied and were present and active during the actual verication and tallying at Bomas. An example is Justus Nyang’aya, who stood on the podium to announce to the public an adjustment that had been occasioned by errors of tabulation. [52] The events of August 15, 2022 therefore came as a surprise. As the public waited for the Chairperson of the IEBC to declare the nal result, sporadic violence broke out at Bomas. The violence was swiftly contained by security forces, but there was unexpected drama, as two dierent factions of the Commission began to emerge. Kenyans found themselves watching an appalling split screen scenario on their television sets. On one part of the screen was the Chairperson, readying himself to declare the result in accordance with article 138(10) of the Constitution. On the other part of the screen were four Commissioners on the lawns of the Serena Hotel-Nairobi, from where they announced that they would not “own” the results that were soon to be declared by their Chairperson. [53] The four Commissioners informed the public of their rejection of the yet to be announced results, terming them “opaque” due to the manner in which the Chairperson had been conducting the verication and tallying exercise. In his adavit dated the August 25, 2022 Justus Nyang’aya averred that the Chairperson’s actions during the tallying and verication exercise at Bomas, made it dicult to ascertain the total number of votes cast, and the actual number of votes attained by each candidate, so as to enable him authoritatively state whether the Commission had declared accurate results. kenyalaw.org/caselaw/cases/view/240578/ 22