12 October 2017

Kenya: Clarify Poll Rulings, IEBC Asks Supreme Court

Independent Electoral and Boundaries Commission on Wednesday asked the Supreme Court to tell it what to do when poll results do not tally.

IEBC lawyer Kamau Karori said the court had stated that the national returning officer had the obligation of comparing results in Forms 34A and 34B.

During the ruling on the presidential election petition, the Supreme Court upheld the Court of Appeal decision, which said results declared at polling centres could not be altered.

"What happens when the national returning officer reads a result that he knows could be wrong? It is in those circumstances that we seek a clarification," he said.


Mr Karori added that the application was not a review of the Supreme Court judgment or an appeal against the decision of the Court of Appeal petition, popularly known as the Maina Kiai case.

He said the Supreme Court judges explained that among the reasons they annulled the presidential election was because the commission did not verify the results by comparing Forms 34B against the results electronically transmitted in Forms 34A.

In the Kiai case, the court ruled that the only verification the presidential poll returning officer could do was to confirm that the candidate met the threshold decreed in the Constitution.

The law says a candidate must garner more than half of votes cast and at least 25 per cent in more than half the counties.


However, the Supreme Court faulted IEBC chairman Wafula Chebukati, who is the national returning officer, for announcing the winner before comparing the results in Forms 34A and 34B.

"There can be no logical explanation as to why in tallying Forms 34A into Forms 34B and into Forms 34C, this primary document was disregarded," the judges said.

Mr Karori said that in IEBC's understanding, the national returning officer was expected to compare results in Forms 34A against tallies in Forms 34B.

"The result of such an exercise would either establish that the tallying in Forms 34B are correct or that there are discrepancies or differences between the results in Forms 34A and the tallies of those results in Forms 34B," he said.


The National Super Alliance, through its lawyers Willis Otieno and Ben Sihanya, opposed the suit, saying IEBC should have sought clarification from the High Court.

Prof Sihanya said the commission filed the case "with soiled hands by failing to obey court orders and the law".

President Uhuru Kenyatta through his lawyer Kimani Kiragu said there was nothing wrong with any party seeking a clarification from the court.

The court will rule on the matter on October 17.


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