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DISMISSED WITH COSTS! Kenya Supreme Court throws out Raila’s election petition

Kenya's Chief Justice Martha Koome delivers the ruling of the Supreme Court on Monday  (PHOTO/Courtesy).

Kenya’s Chief Justice Martha Koome delivers the ruling of the Supreme Court on Monday (PHOTO/Courtesy).

The Kenya Supreme Court has upheld the election of William Ruto as the country’s president, dismissing a petition filed by Azimio la Umoja, one of Kenya’s presidential candidates, Raila Odinga.

Raila, alleging fraud and several irregularities, 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.

But on Monday, September 5, 2022, the bench of seven judges led by Chief Justice Martha Koome ruled that Raila’s petition was based on hearsay.

As a result, Chief Justice Koome ruled that there were no significant irregularities or illegalities that would have affected the outcome of the presidential election. “As a result, we find that the petitioners did not present a watertight case to warrant the setting aside of the presidential election on the basis of failing to meet the threshold provided under Article 138 (4)(a) of the Constitution,” the Chief Justice ruled.

“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, is 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.

She also said that the technology used by the country’s Independent Electoral and Boundaries Commission (IEBC) met standards of integrity, verifiability, security, and openness to make sure that the results were correct and could be checked.

“Upon considering all the pleadings, susmisions 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.

The Chief Justice ruled that there was no proof that interference happened when polling stations uploaded and sent forms 34A and 34B to the IEBC public portal.

The Chief Justice ruled that “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.”

“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.

The other issue was whether the 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 for this allegation, it has not been sworn that the IEBC acted in bad faith or was influenced by irrelevant factors when it put off the elections in the named electoral units,” 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.

“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 is not in the chairperson of the IEBC, but in the commission itself,” she ruled on whether the IEBC carried out verification, tallying, and declaration of results.

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

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

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