election officials. They further contended that the discrepancies in question
did not affect the result of the election.
[246] The 1st and 2nd respondents added in further response, that the 11,
155 polling stations from which the impugned results were streamed were
in areas which were not served by 3G and 4G network coverage.
[247]The petitioners’ case, and the responses thereto by the respondents,
have conjured in our minds, a puzzle of labyrinthine proportions regarding
Forms 34A. In the face of a very clear and unambiguous Section 39(1C) of
the Elections Act, what went wrong with this critical document? The case
for the petitioners is that the 2nd respondent, in exercise of his
responsibility as the returning officer of the presidential election, declared
the results for the election of president before receiving all the Forms 34A
from the 40,883 polling stations from across the country. Incomplete
results, argued Mr. Otiende Amollo for the petitioners, could not be a basis
for a valid declaration. The respondents’ answer to that assertion is that the
results were declared on the basis of Forms 34B all of which had been
received by the time the declaration was made.
[248] In an affidavit sworn by Koitamet Ole Kina, in support of the
petition, there is telling correspondence which we had referred to earlier
but which we reproduce in the present context. On the 10th of August 2017,
the deponent, acting on behalf of the petitioners, wrote to the 2nd
respondent in the following words:
“Your brief on the above subject at Bomas on 10th
August, 2017 at around 9.00 pm refers. You informed
Kenyans and the world at large that IEBC had
Presidential
Petition
No.
1
of
2017
103
|
P a g e