Huge Ruto victory as apex court upholds presidential win

The Supreme Court on Monday delivered its verdict on the presidential petition filed by Azimio la Umoja One Kenya presidential candidate Raila Odinga.

Raila was seeking to overturn the win of Deputy President William Ruto of UDA as the President-elect following the August 9 polls.

Ruto was declared winner of the elections with over 7.1 million votes against Raila’s 6.9 million. Raila rejected the results and moved to court.

The judges are Chief Justice Martha Koome, deputy Chief Justice Philomena Mwilu, justices Issac Lenaola, Njoki Ndung’u, Ibrahim Mohammed, Smokin Wanjala and William Ouko.

The court in its verdict read by Koome ruled as follows on the following nine issues:

1. Whether the technology deployed by IEBC met standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.

“Upon considering all the pleadings, submissions and all the ICT scrutiny of the vote tallying and recounting report which fully examined the IEBC’s elections system, we are not persuaded by the allegation that the technology deployed by the IEBC failed the standard of article 86 (a) of the Constitution on integrity, verifiability, security and transparency to guarantee accurate and verifiable results,” Koome said.

“In our view, the petitioners failed to produce evidence to the contrary,” she added.

2. Whether there was interference with uploading and transmission of forms 34A from polling stations to the IEBC public portal.

“There were no significant differences captured between the Forms 34A uploaded on the public portal and the physical Forms 34A delivered to Bomas that would have affected the overall outcome of the presidential election,” the CJ ruled.

3. Whether there was a difference between forms 34A uploaded in the portal and those received at the National Tallying Centre and forms 34A issued to agents at polling stations.

“No credible evidence was to support the allegation that Forms 34A presented to agents differed from those uploaded on the public portal,” Koome said adding that, “We have found none,” on whether there was any evidence to that effect.

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4. Whether postponement of gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South, and Nyaki West and Mukuru kwa Njenga wards resulted in voter suppression to the detriment of the petitioners in petition number E005/2022.

“As regarding this allegation, it has not been shown that by postponing the elections in the named electoral units, IEBC acted in bad faith or was influenced by irrelevant reasons and considerations,” Koome said.

“From the explanation tendered, we are satisfied that the postponement was occasioned by a genuine mistake which in our view could have been avoided had the IEBC staff been more diligent when they went to inspect the templates in Greece where the printing of ballot papers was undertaken,” she added.

“In the absence of any empirical data as a matter of fact or evidence that the postponement affected voter turnout of which the first petitioner alone suffered a disadvantage,” Koome ruled.

5. Whether there were unexplained discrepancies between votes cast for presidential candidates and other positions.

“IEBC has proffered a plausible explanation for the vote differential citing category of voters who only vote for president such as prisoners and diaspora. There were insignificant number of stray votes whose combined effect cannot justify the nullification of the election.”

6.Whether IEBC carried out verification, tallying and declaration of results in accordance with provisions of articles 138 (3) (c) and 138 (10).

“We find that pursuant to Article 138 (3)(c) of the Constitution, the power to tally and verify presidential election results as received at the national tallying centre not in the chairperson of IEBC but in the commission itself.”

“We find that the chairperson cannot arrogate to himself the power to verify and tally results of a presidential election to the exclusion of other members of the commission,” Koome said.

“He does so only as a delegate of the Commission,” she added.

She went on:

“The four commissioners have not placed before this court any information or document to show that the results were compromised or that the results would have substantially differed from that declared by the chairperson.

“In the absence of any evidence so, violation of the Constitution and election laws, how can we upset an election in which the people have participated without hindrance as they made their political choices pursuant to Article 38 of the Constitution? To do this would be tantamount to subjecting the sovereign will of the people to the quorum antics of the IEBC. This we cannot do,” the CJ ruled.

7. Whether the declared president-elect attained 50 per cent plus one vote of the total votes cast in accordance with article 138 (4) of the Constitution.

“We have deliberated on this proposition and found that it’s not mathematically sound and that the rounding off done by IEBC chairperson was correct.”

8. Whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election.

“Consequently we find that the petitioners did not present a water-tight case to warrant the setting aside of the presidential election on the basis of having not met the threshold provided under Article 138 (4)(a) of the Constitution,” the Chief justice ruled.

9. What reliefs and orders can this court (Supreme Court) issue. 

“This is a unanimous decision of the court and we make the following orders.

“The presidential petition number E005 of 2022 as consolidated by presidential petition numbers E001, 2, 3, 4, 6, 7 and 8 of 2022 are hereby dismissed. As a consequence, we declare the election of the first respondent as President-elect to be valid under Article 43 of the Constitution,” Koome ruled.

The parties were ordered to bear their own costs.