[239] In response, the 1st respondent submitted that the difference in the
results announced on the Forms and the Public Web Portal did not offend
any law or regulation in view of the fact that the results in the forms were
final, while the results on the Public Web Portal were mere statistics. Mr.
Nyamodi, counsel for the 1st respondent also submitted that in view of the
Court of Appeal’s decision in Maina Kiai, the system of transmission had
to be reconfigured to allow for manual transmission. Counsel explained
that the source document that the 1st respondent relied on to do so was no
longer Form 34A but Form 34B.
[240] Likewise, counsel submitted, a similar fate had befallen the Form
34C in terms of format and structure. Towards this end, counsel informed
the Court that the original Form 34C which had contained a Form 34A tally
was reconfigured by the first respondent to exclude that tally so as to
conform to the decision of the Appellate Court in Maina Kiai.
[241] As for the controversy surrounding the electronic transmission of
results, counsel submitted that such transmission, was a mere conveyance
belt and nothing more. To this, Mr. Ngatia, counsel for the 3rd respondent
would later add that, the electronic transmission with which the petitioner
was obsessed was like a matatu and no more. What was important, counsel
urged, was what was conveyed (meaning, the “results”) as opposed to the
manner in which it was conveyed (meaning the “electronic transmission”).
[242] The 1st respondent also submitted that the security feature of the
Kenya
Integrated
Electoral
Management
System
(KIEMS)
was
programmed to capture and transmit only one image. In some instances,
Presidential
Petition
No.
1
of
2017
101
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P a g e