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REPUBLICOFKENYA
INTHESUPREMECOURTOFKENYAATNAIROBI
ELECTIONPETITIONNO.1OF2017
BETWEEN
H.E.RAILAAMOLOODINGA..…………...………….……...1STPETITIONER
H.E.STEPHENKALONZOMUSYOKA..….....……..…….....2NDPETITIONER
AND
INDEPENDENTELECTORALAND
BOUNDARIESCOMMISSION............……………...….…...1STRESPONDENT
THECHAIRPERSONOFINDEPENDENT
ELECTORALANDBOUNDARIESCOMMISSION..............2NDRESPONDENT
H.E.UHURUMUIGAIKENYATTA………......…………..3RDRESPONDENT
RESPONSETOPETITION
InresponsetothePetition,the1stand2ndRespondentsstateTHAT:
1. Savewhatishereinexpresslyadmitted,the1stand2ndRespondentsdeny
eachandeveryallegationoffactassetoutinthePetitionasifthesame
werehereinsetoutverbatimandtraversedseriatim.
2. The1stRespondentisestablishedunderArticle88oftheConstitution.It
is charged with the exclusive mandate of conducting or supervising
referendaandelectionstoanyelectivebodyorofficeestablishedbythe
Constitution, and any other elections as prescribed by an Act of
Parliament.The1stRespondentisaccordedthestatusofanindependent
Page2of25
constitutional commission pursuant to Article 248 (2)(c) of the
Constitution with the principal purpose of, inter alia, protecting the
sovereigntyofthepeople.
3. In carrying out its duties under Article 88 of the Constitution, the 1st
RespondentisenjoinedbyArticle249(2)oftheConstitutiontoexercise
itspowerssubjectonlytotheConstitutionandnationallegislation.
4. The 1st and 2nd Respondents (hereinafter “the Respondents”) admit
paragraphs1,2,3and4ofthePetitioninsofarasthesamearemerely
descriptive of the parties save that their addresses of service for the
purposes of this Petition is care of V.A. Nyamodi & CO. Advocates,
LowerhillDuplexApartments,LowerhillRoad,Upperhill,P.O.Box51413
– 00200Nairobi and Iseme, Kamau andMaemaAdvocates, IKMPlace,
TowerA,1stFloor,5thNgongAvenue,OffBishopsRoadP.O.Box11866-
00400,Nairobirespectively.
5. TheRespondents conducted ageneral electionon the8thAugust, 2017
andforthepresidentialelection,thefollowingcandidatescontestedand
theresultswereasbelow-
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NAMEOF
CANDIDATE
VALID
VOTES
%OF
VOTES
CAST
NO. OF COUNTIES THE
CANDIDATES ATTAINED AT
LEAST 25% OF THE TOTAL
VALIDVOTESCAST
JohnEkuru
Longoggy
Aukot
27,311 0.18% 0
Mohamed
AbdubaDida
38,093 0.25% 0
Shakhalaga
KhwaJirongo
11,705 0.08% 0
Japheth
KavingaKaluyu
16,482 0.11% 0
Uhuru
Kenyatta
8,203,290 54.27% 35
Michael
Wainaina
Mwaura
13,257 0.09% 0
JosephWilliam
NthigaNyaga
42,259 0.28% 0
RailaOdinga 6,762,224 44.74% 29
6. ThetallyingprocessconfirmedthatUhuruKenyatta,the3rdRespondent
herein, garnered the largest number of votes and satisfied the
constitutional thresholdsetout inArticle 138 (4)of theConstitutionby
Page4of25
receivingmorethanhalfofallthevotescastintheelectionandatleast
twenty fivepercentof thevotescast ineachofmore thanhalfof the
counties.
7. The Respondents aver that the presidential election was conducted in
accordance with the Constitution, the Independent Electoral and
Boundaries Commission Act, the Elections Act, the Regulations
thereunderandallotherrelevantprovisionsofthelaw.ThePetitioners’
allegations as contained in paragraph 5 of the Petition are couched in
generalities,misplacedandwithoutfactualbasis.
8. The Petitioners’ allegations of massive, systemic, systematic and
deliberate non-compliance with the Constitution and the law in
paragraph 6 of the Petition are couched in generalities and
misconceived. The Respondents aver that the presidential election
process was backed by an elaborate electoral management system
supported by various electoral laws, which included several layers of
safeguards to ensure an open, transparent, participatory and
accountable system to guarantee free and fair elections pursuant to
Article81asreadtogetherwithArticle86oftheConstitution.
9. TheRespondentsaverthatthecontentsofparagraphs7,8,9&10ofthe
Petitionarerestatementsofthelawanddonot,withoutmore,present
requisite grounds of a Petition under Rule 8 of the Supreme Court
(PresidentialElectionPetition)Rules,2017.
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10. Inresponsetoparagraphs11&12ofthePetition,theRespondentsstate
that the Petitioners have not pleaded how and inwhatmanner the 1st
Respondentabdicateditsroleanddutyasalleged.TheRespondentsaver
that the sovereign power of the people was exercised through the
presidential election held on 8th August, 2017. In conducting the said
elections,the1stRespondentdischargeditsmandateinaccordancewith
theConstitutionandtheapplicablebodyofelectorallaws.Theallegation
that the 1st Respondent was “an institution and law unto itself” is
unfoundedandhasnotbeensubstantiated.
11. In further response toparagraph 12of thePetition, the 1st Respondent
denies the allegation that it abdicated its role and duty to exercise,
protectandsafeguardthesovereignwillofthepeopleofKenya.Onthe
contrary, the 1st Respondent managed and conducted the presidential
election in accordance with the Constitution, the Elections Act and all
governingstatutes.
12. In response to paragraphs 13 and 14, the Respondents state that the
allegationsarevagueandcouchedingeneralitiesandlackparticularsas
requiredbylaw.TheRespondentsreiteratethatthepresidentialelection
was conducted in accordance with the Constitution, the Elections Act
and all governing statutes and was not marred with irregularities as
allegedbythePetitioners.
13. Inresponsetoparagraph15ofthePetition,theRespondentsstatethat
they verified and accurately tallied the results of all the candidates in
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declaring the results of the presidential elections in accordance with
Article138(10)oftheConstitution.
14. TheRespondentsdenytheallegationinparagraph16ofthePetitionand
statethatindeclaringtheresultsofthepresidentialelection,effectwas
given to the sovereign will of the people of Kenya. The Respondents
denythevagueandunsubstantiatedclaims.
15. In reply to paragraph 17 of the Petition, the Respondents state that
Section83oftheElectionsActprovidesasfollows-
Noelectionshallbedeclaredtobevoidbyreasonofnon-compliance
withanywritten law relating to thatelection if it appears that the
electionwasconducted inaccordancewiththeprinciples laiddown
in the Constitution and in that written law or that the non-
compliancedidnotaffecttheresultoftheelection.
16. The Respondents further state that the presidential election was
conducted in accordance with the Constitution, the Elections Act and
Regulationsthereunderandallotherrelevantstatutes.
17. The Respondents deny the vague and generalised allegation in
paragraph18ofthePetitionandstateinresponsethattherejectedvotes
didnotaccount forat least 2.6%of the total votes cast asalleged.The
total numberof rejectedballotswas81,685asdeclared in Form34C, a
percentageof0.54%ofthevotescast.
Page7of25
18. In response toparagraphs 19, 20&21of thePetition, theRespondents
statethattheSupremeCourtinPresidentialElectionPetitionNo.5of2013,
RailaOdingavIndependentElectoralandBoundariesCommission&Others,
considered the provisions of the Constitution, the Elections Act and
Regulations thereto inarrivingat itsdecision.ThePetitioners claim isa
matter for submissionsanddoesnotconstituteacomplaintarisingout
of the conduct of the 2017 Presidential elections. In any event, the
SupremeCourtdecisionwasacorrect interpretationofthe lawandthe
minority decision in the Seychelles Constitutional Court was upheld by
the Seychelles Court of Appeal in the case of Popular Democratic
MovementvElectoralCommission(2011)SLR385.
(a) violation of the principles of a free and fair election and electoral
process
19. The Respondents deny the allegation in paragraph 21.1 of the Petition
that they contravened the principles of a free and fair election under
Article81(e)oftheConstitutionasreadtogetherwithSection39ofthe
Elections Act and the Regulations thereunder. On the contrary, the
Respondentsreiteratethattheyconductedtheirelection inaccordance
withtheConstitution,theElectionActandtheRegulationsthereto.
RelayandTransmissionofResults
20. Inresponsetoparagraph21.2,theRespondentsstatethattheprocessof
relay and transmission of results from the polling stations to the
constituency and National Tallying Centre (NTC), and from the
constituencytallyingcentretotheNTCwassimple,accurate,verifiable,
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secure, accountable, transparent, open and prompt. This process
securedafreeandfairelectionasrequiredbyArticle81(e)(iv)and(v)of
theConstitution.Inparticular,theRespondentsstatethat:-
a. Upon the close of polling, the votes cast were counted and the
resultswere then recorded in Forms 34A, an image of the Form
34Awascapturedby theKenya IntegratedElectionManagement
System (KIEMS) kit and the statistics in the Form34Awere then
entered into the KIEMS kits at all polling stations. The presiding
officer would then simultaneously relay the statistics and the
image of the Form 34A to the relevant constituency returning
officerandtotheNTC.
b. ThecompletionofthetransmissionoftheimageofForms34Awas
dependent on the availability of 3G or 4G network coverage. In
respect of areas lacking 3G or 4G network coverage, the
Respondents established alternative mechanisms to ensure
completionintransmissionoftheimageoftheForm34A.
c. In accordance with Section 39 (1C) of the Elections Act, the 1st
RespondentpublishedtheimagesofForms34Aand34Binrespect
ofthepresidentialelectiononitspublicportal.
d. The Respondents aver that all polling stations transmitted the
statistics of the results through KIEMS accompanied by the
electronicimageofForms34A.
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e. At the time of the declaration of the results of the presidential
election, the Respondents had in their possession all the forms
required in lawforpurposesofadeclarationoftheresultsofthe
presidentialelection.
f. The Respondents state that the procedure adopted in the
transmissionandtallyingofresultsofthepresidentialelectionwas
in conformity with the decision of the Court of Appeal in Civil
Appeal No. 105 of 2017, Independent Electoral and Boundaries
Commission v. Maina Kiai, & 5 Others. The allegation by the
Petitionersthatthe1stRespondentdeliberatelypre-determinedand
setitselfonapathofsubvertingthelawandbeingalawuntoitself
thereforelacksmerit.
g. The Respondents reiterate that the presidential election was
conductedinaccordancewithArticle81(e)(v)oftheConstitution,
the Elections Act and the Regulations thereunder and that the
results of the presidential election were declared in accordance
with Article 138 (10) of the Constitution. In reply to paragraph
21.2.2.6.2, the Respondents state that the results were declared
aftertallyingoftheresultsinallstatutoryformsrequired.
h. The Respondents state that the allegation in paragraph 21.2.3 is
incorrect. The statistics entered into the KIEMS kitswas not the
resultandisthereforenotcomparablewiththeresultsrecordedin
Forms34A.Iftherewereanydiscrepanciesinthestatisticsentered
in theKIEMS kits,which is denied, thesewould be as a result of
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inadvertenthumanerrorduringthetransferoffiguresfromForms
34A to the KIEMS kits. The said discrepancies, if any, did not
materiallyaffecttheoutcomeofthepresidentialelections.
i. The Respondents aver that the declaration of the results of the
presidentialelectionwasonthebasisofresultscontainedinForms
34B from each of the 290 constituencies and the diaspora. The
results contained in Form 34B is an aggregation of Forms 34A in
each constituency. In the circumstances, the results declared by
the 2ndRespondentwerenot affectedby any variancesor errors
thatmayhaveoccurredatthepointofdataentryintoKIEMS.
j. The Respondents deny the allegation that in more than 10,000
polling stations, data entered in KIEMS was not consistent with
information and data from the respective Forms 34A. The data
entered in KIEMS was statistics. The result of the election from
each polling station was contained in Forms 34A. It is therefore
incorrect to compare the statistics entered in KIEMS with the
resultsfromeachpollingstationascontainedinForms34A.
k. Inviewoftheforegoing,thepresidentialelectionwasconducted
inanimpartial,neutral,efficient,accurateandaccountablemanner
inaccordancewithArticle81(e)oftheConstitution.
l. In response to paragraph 21.2.4, the Respondents aver that the
resultscontainedinForms34Btallywiththeresultsobtainedfrom
thepollingstationsassetoutinForms34Awhicharetheprimary
Page11of25
data entry forms. Any isolated cases of discrepancies and/or
inconsistenciesbetweentheresultsascontainedinForms34Aand
Forms 34Bwhich is denied, arose from inadvertent human error
during the process of tallying and verification of the results
contained in the Forms 34A. The said errors, if any, did not
materiallyaffecttheoutcomeoftheelections.
m. TheRespondentsdeny thecontentsofparagraph21.2.5andaver
that the role of the constituency returning officer as set out in
Regulation 83 (1) of the Elections (General) Regulations, 2012 is
limitedtotallyingandverifyingthecountofthevotesascontained
in Forms 34A from the polling stations, declare the result of the
electionanddelivertothe2ndRespondentthecollatedresultsfor
theelectionofthepresidenttothenationaltallyingcentre.
n. Inturn,the2ndRespondent’sroleistotallytheresultsreceivedat
thenational tallying centre as setout inRegulation83 (2)of the
Elections(General)Regulations,2012.
o. TheRespondentsreiteratethecontentsofparagraph20(l)above
and aver that if there were any inaccuracies, the same were
minimal and occasioned by inadvertent human error and not
deliberate and calculated as alleged by the Petitioners. The
allegation by the Petitioners that the inaccuracies and
inconsistencies affect and account for at least 7 million votes is
false and fails to satisfy the evidentiary threshold required to
validatethatfactualassertion.
Page12of25
p. With respect to the allegation that the results in Forms 34B are
materially different from what the 1st Respondent relayed
containedinparagraph21.2.6,the1stRespondentrestatesthatthe
numbersenteredinKIEMSwasstatistics.Theresultoftheelection
fromeachconstituencywascontainedinForms34B.Itistherefore
incorrecttocomparethestatisticsentered intheKIEMSkitswith
theresultsfromeachconstituencyascontainedinForms34B.
q. Inresponsetoparagraph21.2.7ofthePetition,the1stRespondent
states that in compliance with its constitutional and statutory
obligation to ensure transparency of the electoral process, it
publiclyrelayedthestatisticstransmittedfromthepollingstations
on a public portal, which statistics were available to the public,
including the media. The allegation that the 1st Respondent
deliberately created a false narrative is incorrect. To the
Petitioners’ knowledge, the Respondents clarified that the
statistics on the public portal were not the results of the
presidentialelection.
r. The2ndRespondentconfirmsthatatthetimeofthedeclarationof
theresultofthepresidentialelection,hehadinhispossession290
Forms34Bfromalltheconstituenciesandthediaspora.
Impartiality,neutrality,efficiency,accuracyandaccountability.
21. Inresponsetoparagraph21.3ofthePetition,theRespondentsaverthat
thepresidentialelectionwasconductedinanimpartial,neutral,efficient,
Page13of25
accurate and accountable manner. The Respondents complied with
Article 81(e) (v) as read togetherwith Sections 39, 44 and 44A of the
Elections Act, the Regulationsmade thereunder and Section 25 of the
IndependentElectoralandBoundariesCommissionAct.
22. The Respondents deny the allegation that it selectively manipulated,
engineeredordeliberatelydistorted,inflatedorinterferedwiththevotes
castandcountedinfavourofthePetitionersand/orthe3rdRespondent
or that there was any systemic and systematic manipulation and
distortion of the results as alleged in paragraphs 21.3.1 - 21.3.5 of the
Petition . The Respondents confirm that the results of the presidential
election declared by the 2nd Respondent were based on the results
indicatedinForms34Bwhichconfirmedthatthe3rdRespondentmetthe
constitutionalthresholdsetoutinArticle138(4)oftheConstitution.
Lackandfailureofoperationaltransparency
23. In reply to paragraph 21.4, the Respondents aver that the presidential
electionwasconductedinanopenandtransparentmanner.
24. Inresponsetoparagraph21.5,21.6and21.7,theRespondentsaverthatin
the conduct of the presidential election, they were guided by the
decisionoftheCourtofAppealinCivilAppealNo.105of2017,Independent
Page14of25
Electoral and Boundaries Commission v. Maina Kiai, & 5 Others as
demonstratedbelow-
a. The 1stRespondentcollated, talliedandelectronically transmitted
theresultsofthepresidentialelection.
b. Theresultsdeclaredattheconstituencytallyingcentreswerefinal.
c. Inresponsetoparagraphs21.5.3to21.5.5and21.12ofthePetition,
the Respondents state that in compliance with its constitutional
and statutory obligation to ensure transparency of the electoral
process, the statistics from thepolling stationswere transmitted
simultaneouslywithscannedimagesoftheForms34Aand34Bby
thepresidingofficers in thepollingstationsand theconstituency
returningofficersrespectivelytotheRespondents.
d. The1stRespondentuploadedthesaidstatisticsand imagesonan
online portal accessible to the public, including the media. The
Respondents however clarified that the said statistics did not
constitute the results of the presidential election. The
Respondents further state that the data displayed on the public
portalwasstatisticsandnotresultsasalleged.
e. TheRespondents deny the allegations at paragraph 21.5.6 of the
Petition. The Respondents did not eject any of the Petitioners’
agentsfromanypollingstation.
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f. Inresponsetoparagraph21.5.7,theRespondentsdenythatthere
were in excess of 14,000 defective returns from the polling
stationsasalleged.
25. In reply to paragraph 21.8, the Respondents reiterate the averments
contained in paragraph 24 and deny the allegation that they declared
incorrectfinalresultsasalleged.
26. The1stRespondentdeniestheallegationscontainedinparagraph21.9of
the Petition and states that it conducted the presidential election in
accordancewiththeConstitution,theElectionsActandtheRegulations.
Verifiability
27. TheRespondentsdenytheallegations inparagraph21.10andstatethat
theresultsdeclaredbythe2ndRespondentwereinaccordancewiththe
Constitution,theElectionsActandallotherrelevantstatutes.
28. The information in Forms 34A is consistent with the results tallied in
Forms34B.
29. The information inForms34Bwasaccurateandverifiable.Asexplained
above,thestatisticscontainedinthepublicwebsitewerenottheresult
oftheelection.
30. The Respondents aver that the presidential election met the
requirementsofArticle81(e)(iv)asreadtogetherwithArticle86ofthe
Constitution.
(b) Voting,countingandtabulationofresults
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31. Theallegationsinparagraph22.1and22.5areincorrect.TheRespondents
state that the results from the polling stations and the constituency
tallying centres were counted, tabulated and accurately collated in
compliance with Article 86 (b) and (c) of the Constitution as read
togetherwiththeElectionsAct.
32. In response toparagraph22.2of thePetition, theRespondents restate
the averments in paragraph 23 (i) and (p) above. The Respondents
further aver that there were no inconsistencies in the votes cast as
capturedinForms34AandForms34B.
33. Inresponsetoparagraph22.3and22.4ofthePetition,theRespondents
averthattheresults inForms34B includeallpollingstationswithinthe
constituencies. The Respondents deny that the said results are
inaccurate in mathematical additions in favour of the 3rd Respondent.
TheRespondentsputthePetitionerstostrictproofofanyavermentto
thecontrary.
(c) Substantivenon-compliance,irregularitiesandimproprieties
34. The Respondents aver that the presidential election was conducted in
accordance with Articles 38, 81 and 86 of the Constitution as read
togetherwith Sections 39 (1C) andSection44of theElectionsAct and
theRegulationsthereunderandSection25oftheIndependentElectoral
andBoundariesCommissionAct.
Ungazettedandundesignatedpollingstations
Page17of25
35. The1stRespondentaversthatitdischargeditsmandateunderRegulation
7 (1)(c) of the Election (General Regulations) 2012 and published in
GazetteNoticeNumber6396 of 26th June 2017 anotice specifying the
polling stations established for each constituency. The 1st Respondent
aversthatitdidnotestablishanysecretandungazettedpollingstations
asallegedbythePetitionerinparagraph23.1ofthePetitionoratall.
36. The 1st Respondent states that there were no results from any
ungazettedpollingstationthatwereincludedinthefinaltallyasalleged
inparagraph23.2ofthePetition.ThePetitioner isputtostrictproofof
anyavermenttothecontrary.
Ungazettedandundesignatedreturningandpresidingofficers
37. Inresponsetoparagraph23.3ofthePetition,the1stRespondentstates
that all Forms 34B were executed by duly gazetted and accredited
constituencyreturningofficers.
38. In response toparagraph23.4of thePetition, the 1stRespondentavers
that all the Forms 34B were valid, signed and/or stamped by the
constituency returning officers in accordance with the Election
Regulations.
39. The 1st Respondent avers that it complied with the requirements of
Regulation 5of theElection (GeneralRegulations) 2012 andprovided a
list of the persons proposed for appointment as presiding officers to
politicalpartiesthroughtheofficeoftheRegistrarofPoliticalParties.It
Page18of25
isthereforenotcorrectthatasignificantnumberofreturnsweresigned
bystrangersasallegedinparagraph23.6ofthePetition.
Improperandinvalidreturns
40. The 1st Respondent denies the vague allegations in paragraphs 23.7,
23.7.1 and 23.7.3 of thePetition and states that all the Forms 34A and
Forms 34B used in the presidential election were in accordance with
Regulation79(2)(a)and87(1)(a)oftheElection(GeneralRegulations)
2012.
41. The Respondents denies the allegations in paragraphs 23.7.2 of the
Petition and puts the Petitioners to strict proof thereof. The 1st
Respondent further avers that to the extent that there were only 291
Forms34B,thePetitioners’referenceto14,078and25,000Forms34Bis
misplaced.
42. TheRespondentsdenytheallegationsinparagraphs23.7.4and23.7.5of
thePetitionandaverthatallForms34Aweresignedandfinalisedatthe
polling stations.No Forms 34Ahavebeen alteredor tamperedwith as
alleged.
43. Inresponsetoparagraphs23.7.6to23.7.20,theRespondentsstatethat
theForms34AandForms34Bbearvarioussecurityfeaturestosafeguard
against introductionofforeignforms.TheRespondentsfurtherstateas
follows:-
Page19of25
a) AllForms34AandForms34Bweresignedand/orstampedasrequired
underthelaw.
b) TheRespondentsdenytheallegationthatanumberofForms34Bdid
not indicate the names of the returning officers and put the
Petitionerstostrictproof.
c) The Respondents deny the allegation that a substantial number of
Forms34AandForms34Bdonotbearthe1stRespondent’sstampor
authenticstampandputthePetitionerstostrictproof.
d) The Respondents deny the allegation that a substantial number of
Forms 34A and Forms 34B do not bear the signatures of the
candidates’ agents or the reason for refusing to sign and put the
Petitioners tostrictproof. Inanyevent, therefusalbytheagentsto
signthesaidformsdoesnotinvalidatetheresultsannounced.
e) TheRespondentsdeny theallegation that the samepersonwas the
presiding officer in a considerable number of polling stations in
different areas and put the Petitioners to strict proof. The
Respondents state that the 1st Respondent appointed presiding
officersinrespectofeachofthepollingstationsinthecountry.
f) In response to paragraphs 23.7.11 to 23.7.14 of the Petition, the
RespondentsaverthatthereisnoobligationunderRegulation87for
the constituency returningofficers to indicate thenumberof Forms
34Ahandedovertothem.TheintegrityofForms34AandForms34B
wasnotcompromisedandtheresultscontainedthereinarevalid. In
Page20of25
anyevent,theallegedirregularities,ifany,donotrendertheForms34
invalidanddonotaffectthefinalresult.
g) TheRespondents states that the results of the presidential election
were declared on the basis of the aggregate of Forms 34B which
reflectedthewillofthepeople.Theallegationthatthe1stRespondent
manufacturedtheresultsofthepresidentialelection isfalseandhas
notbeensubstantiated.
h) The Respondents deny that 14,078 Forms 34A have fatal and
irredeemable irregularitiesasallegedbythePetitioners inparagraph
23.7.16ofthePetitionandputthePetitionerstostrictproof.
i) In response to paragraphs 23.7.17 to 23.7.19 of the Petition, the
Respondentsstatethatatthetimethedeclarationoftheoutcomeof
the presidential election by the 2nd Respondent, the 1st Respondent
had received all the statutory forms required for purposes of the
declaration.ThePetitioners’allegationthatthereareinexcessof3.5
millionvotesoutstandinglacksmeritandhasnotbeensubstantiated.
j) The Respondents deny the allegations in paragraph 23.7.20 of the
Petitionandaver thatallForms34Awereprocessedand the results
declaredinaccordancewiththelaw.
Contradictoryandinconsistentoperationalprocedures
44. In responsetoparagraph23.9 to24, the 1stRespondentstates that the
instructionsgivento itsstaffwereconsistentwiththeConstitutionand
Page21of25
thelawasinterpretedbytheHighCourtandtheCourtofAppeal.There
was therefore no non-compliance with the law as alleged by the
Petitioners.
45. The 1st Respondent avers that if there were any irregularities or
improprieties,whicharedenied,thesamewerenotmaterialanddidnot
affecttheintegrityoroutcomeofthepresidentialelection.
(d) Rejectedvotes/ballots
46. In responsetoparagraph25of thePetition, theRespondentsaverthat
thenumberofrejectedballotsinrespectofthepresidentialelectionisas
declaredbythe2ndRespondent inForm34Cwhich is81,685andnotas
allegedbythePetitioners.
47. In response to paragraphs 26 and 27 of the Petition, the Respondents
averthatthepresidentialelectionwasconductedinaccordancewiththe
Constitutionandthelaw. Theresultofthepresidentialelection isclear
andthereisthereforenobasisforanexamination,auditorscrutiny.
48. In response to paragraph 28 of the Petition, the 2nd Respondent avers
that the result of the presidential election was as contained in the
aggregateof Forms 34B andnot thepublic portal. The statistics in the
publicportaldidnotaffecttheoutcomeoftheresultofthepresidential
electionasdeclaredbythe2ndRespondent.
Page22of25
49. TheRespondentsstate inresponsetoparagraph29ofthePetitionthat
rejected ballots were properly excluded from valid votes by the
Respondentsinaccordancewiththelaw.
e)Othercontraventionsandviolations
ContraventionofArticle35(2)oftheConstitution
50. The Respondents reiterate that the statistics in the public portal were
nottheresultsofthepresidentialelectionandthe1stRespondentdidnot
violate or contravene the Petitioners’ rights under Article 35(2) of the
Constitutionasallegedinparagraph30ofthePetition.
Intimidationandimproperinfluence
51. The Respondents deny that the presidential election was marred or
significantly compromised by intimidation, improper influence or
corruptionasallegedinparagraphs31and33ofthePetition.
52. TheRespondentsarestrangerstotheallegationsinparagraphs32ofthe
Petitionandareunabletopleadthereto.
53. Inresponsetoparagraphs34theRespondentsstatethatthepresidential
electionwasconducted,administeredandmanaged inaccordancewith
Articles38,81and86oftheConstitutionandtheElectionsActandthe
regulationsthereto.
54. Inreplytoparagraph35ofthePetition,theRespondentsstatethatthe
presidential election was free, fair and in accordance with the
Page23of25
Constitution. The Respondents gave effect to and respected the
sovereignwillofthepeopleofKenya.
QuestionsorissuesfordeterminationbytheCourt
55. TheRespondentsstatethatasresultoftheforegoingaretheissuesfor
determinationbytheCourt:-
(a) Whetherthe3rdRespondentwasvalidlyelectedanddeclaredthe
Presidentelectby2ndRespondentduringthepresidentialelections
heldon8thAugust2017.
(b) What consequential declarations, orders and reliefs should this
HonourableCourtgrant.
REASONSWHEREFORE,theRespondentsinvitethisHonourableCourttofind
andholdthat:
(a) TheRespondentswerenotinbreachofanddidnotcontravenethe
provisionsof theConstitution, theElectionsActorofanyother
statute;
(b) The presidential election was conducted in accordance with the
ConstitutionandtheElectionsActandallotherrelevantstatutes
and a valid declaration of the outcome of the presidential
electionmade;
(c) The 3rd Respondent was validly elected as the President of the
RepublicofKenya;
Page24of25
(d) ThepeopleofKenyaexercisedtheirsovereignpowerof thevote
andtheirdecisionshouldberespected;
(e) ThePetitionlacksmeritandshouldbedismissed;and
(f) ThePetitionersshouldbearthecostsofthePetition;
DATEDatNAIROBIthisday24thdayofAugust2017
V.ANyamodi&Co.
Advocatesforthe1stRespondent
IsemeKamau&Maema
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1. V.ANyamodi&Co 2. Iseme,Kamau&Maema
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1. Murumba&Awele
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2. OgettoOtachi&Co.
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