In Summary
  • The Supreme Court put itself in Mr Chebukati’s shoes, imagined a speech he should have made, wrote it down, and read it on his behalf.

  • The court even had the time the speech should have been made: Just before he declared the final results on the night of August 11.

As Kenya prepares for another round of a presidential election being challenged in court and the theatre of Kenya’s best legal minds, the Nation recaps the landmark September 1 ruling that annulled the August 8 poll.

In the historic ruling, the first of such in Africa and the Commonwealth, and only the fourth in the world, the Chief Justice David Maraga-led Supreme Court ruled that the process in an election was as important as the numbers, and could not be brushed aside.

DISSENT

In the 4-2 majority judgment, with Justices Prof Jackton Ojwang and Njoki Ndung’u dissenting, the Supreme Court faulted the electoral commission for failure to transmit results declaration forms from 11,000 polling stations.

Coming from Bomet, Bungoma, Busia, Homa Bay, Kajiado, Kericho, Kiambu, Kisumu, Kisii, Kirinyaga, Nyeri, Siaya, and Vihiga counties, the court noted that the commission should have asked its staff to move to areas with better coverage, saying the areas had fairly good road network.

“Even if we were to accept that all of them are off the 3G and/or 4G network range, it would take, at most, a few hours for the presiding officers to travel to vantage points from where they would electronically transmit the results. That they failed to do that is in our view, an inexcusable contravention of Section 39(1C) of the Elections Act,” the court said.

The top court also faulted IEBC for failure to open its servers and show its access logs as had been ordered following the Raila Odinga-led Nasa claims of hacking.

SERVERS

“In other words, our order of scrutiny was a golden opportunity for IEBC to place before court evidence to debunk the petitioners’ said claims. If IEBC had nothing to hide, even before the order was made, it would have itself readily provided access to its ICT logs and servers to disprove the petitioners’ claims,” the court said.

The refusal to obey the order, the apex court ruled, left them with no option but to draw adverse reference against them.

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