Electoral commission chairman Wafula Chebukati has asked the Supreme Court to urgently clarify whether he is allowed to correct errors in result forms from constituencies before declaring the winner of the presidential race or not.
Mr Chebukati says the September 1 judgment of the Supreme Court nullifying the August 8 presidential election has left him in a difficult legal position and at risk of being in contempt of the court.
He says the criticism by the Supreme Court that the Independent Electoral and Boundaries Commission (IEBC) declared results that did not add up without verifying was in direct conflict of a Court of Appeal ruling in a June case that results from polling stations were final as collated and announced at the constituency level.
In the Court of Appeal case, better known as the Maina Kiai case, says Mr Chebukati, the court expressly said that the IEBC chairman cannot correct, vary, confirm, alter, modify or adjust the results transmitted to the National Tallying Centre from the Constituency Tallying Centre.
Mr Chebukati now wants the Supreme Court to clarify what he should do if he were to follow its directions -- to verify the results -- in case he notices errors in Forms 34B, which are used to declare presidential results at the constituency.
The figures in Forms 34B are collated to make up the final tally in Form 34C, which the chairman uses to declare the winner of the presidential election.
If Mr Chebukati notices, during verification, that the results in Form 34B did not tally with those of Form 34A -- the results sheet from each one of the 40,883 polling stations -- what he should he do? On the one hand, the Supreme Court ordered him to verify the results, on the other, he argues, the Appellate Court ruling forbids him from doing it.
"Clearly, there was an oversight in the judgment, to the extent that the (Supreme) Court did not complete its directions on how the 2nd Respondent (IEBC chairman) should handle or treat any discrepancy in the tallies in Forms 34B when compared to the tally of the results in Forms 34A," Mr Chebukati said in an affidavit.
The court, in a 4-2 majority decision, nullified the August 8 presidential results, citing irregularities.
Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and Justices Smokin Wanjala and Isaac Lenaola ruled that the illegalities and irregularities were of substantial nature to affect the final outcome while Justices Jackton Ojwang and Njoki Ndung'u dissented.
Five judges of the Court of Appeal had in June stated that the results declared by the Constituency Returning Officer were final and any error noted in the statutory forms could only be corrected by an election court.
However, despite agreeing with the findings of the Court of Appeal, the Supreme Court criticised the commission for failing to correct any errors they had identified.
Mr Chebukati said in the affidavit that the Supreme Court "emphatically stated that, in the course of verification, the numbers must add up".
The Court of Appeal had said that it would be "fallacious and flies in the face of clear principles and values of the Constitution to claim that the chairperson of the appellant can alone, at the National Tallying Centre or wherever, purport to confirm, vary or verify the results arrived at through an open, transparent and participatory process".
This is because the IEBC chairman is represented at all the polling stations, as well as constituency and county tallying centres. However, the Supreme Court said in the majority decision that the failure by the commission to verify the results in consultation with the chairman before declaring the presidential election winner went against the expectation of Article 138 (3) (c) of the Constitution.
The judges said they found little or nothing in the Court of Appeal decision to suggest that the chairman failed to verify the results because the Appellate Court had restrained or barred the commission from doing so before declaring them.
"In its judgment found at page 159 paragraph 365-367, I am required to verify the Forms 34B against the result in Forms 34A," said Mr Chebukati. "It was necessary for this Honourable Court to complete that direction by stating what I am supposed to do in case I find a discrepancy between the two forms."
Mr Chebukati said there was a clear disconnect between the directions by the Court of Appeal and the judgment of the Supreme Court, where the judges of the latter said the commission should compare the results reflected in Forms 34B against those in Forms 34A.
He said there is a real danger because of the uncertainty, which might lead to disputes.
"I am apprehensive that, unless this issue is clarified before the elections scheduled for October 26, 2017, the result of that election will expose the 1st and 2nd Respondents to another challenge and possible contempt of court proceedings," argued Mr Chebukati in the affidavit.