LIVE UPDATES: Day 3 of Raila v Ruto Supreme Court case

First Petitioner - Raila Odinga - represented by lawyers SC James Orengo, Julie Soweto, Paul Mwangi, SC Philip Murgor and SC Pheroze Nowrojee, makes his submissions to the Supreme Court.

James Orengo: We have a commission that is divided right in the middle, that speaks to a dysfunctional constitutional body that is not capable of presiding over an election.

Julie Soweto: Irene Massit in her affidavit says the IEBC CEO and chairman failed to ensure that due diligence was done on the procurement, proofreading and printing of ballot papers

Paul Mwangi: The power given to the IEBC Chairman to declare the results of an election does not give him any power to decide what that result will be.

Philip Murgor: There were several generations of Form 34C yet it was only supposed to be generated once toward the end of the tallying. There is also evidence of backward tallying.

A result for Ruto was being arrived at before the tally was in and each time work was being done to fit 34A and 34B in that result. Through confusion and error, the result was forced on Kenyans through a defective 34C where the commissioners failed to agree.

Pheroze Nowrojee: This is a practiced artist of the destruction of our institutions. He did it in 2017, he was caught. When the court ordered him (Chebukati) to disclose more, he disobeyed the order. Same person, same tricks. He has done this for two election cycles.

Zehrabanu Janmohamed: We request that the Chairperson be prohibited from conducting any further elections in Kenya in view of his behavior and or holding any public office in breach of chapter 6 of the constitution of Kenya.

Chief Justice Martha Koome adjourns proceedings for a lunch break, to resume at 2:00 p.m.

Ruling on recounting of votes

Justice Isaac Lenaola: The court directs IEBC to provide contested Forms 32A and Forms 34A Book 2 from 41 polling stations contained in an affidavit by Celestine Anyango Opiyo. The recounting deadline upheld as 2:00 p.m on September 1, 2022.

Youth Advocacy Africa and Peter Kirika make their submissions

• The IEBC Chairman gazetted matters that did not need to be gazetted.
• Tallying and verification was done exclusively by IEBC Chairman Wafula Chebukati, where were all the other commissioners?
• According to Chebukati's affidavit, tallying was - at best - done by Commissioners Abdi Guliye and Hussein Marjan, not the IEBC.
• The Chairman gazetted himself as the National Returning Officer with no deputy, against standard practice.

Khelef Khalifa & others make their submissions

Willis Otieno: The IEBC went into an election with a compromised voter register. In response to the KPMG audit, the polls agency said it did not have enough time to clear duplication of voters from its systems.

The DCI report on the Venezuelans arrested has corroborated issues raised in the KPMG audit report.

David Kariuki Ngari makes his submissions

Jared Mituga: Results have to be placed before the entire electoral commission for verification before the final results are declared. In 27 constituencies, there was a lack of transparency. Prof Guliye's claim that the failure to read results for 27 constituencies on account of violence at Bomas cannot stand.

Ndegwa Njiru: An individual cannot create a constituency. IEBC Chairman was lost on what he needed to do in making a declaration, his conduct should be interrogated.

Okiya Omtatah & others make their submissions

Prof. Tom Ojienda: The unconstitutional proceedings that led to the declaration of president-elect merit that the gazette notice in regard be vacated. The election was not verifiable. The non-verifiability of the process from the polling centres to the national tallying centre is a subject of an unconstitutional act.

Okiya Omtatah: The 2010 Constitution only anticipated a digital election, not manual. In a digital election there are no spoilt votes, a manual election cannot prove where the vote goes after casting a ballot.

Okiya Omtatah: The conflicting figures for valid votes cast of 14,213,137 and 14,213,027 is evidence that the results were worked backwards to achieve a desired or predetermined outcome. The declared percentages for the four candidates are null and void in their entirety.

Julia Nyokabi Chege & 3 others make their submissions

Kibe Mungai: IEBC cannot give a single instance where it has gone out of its way to ensure that as many Kenyans as possible have participated in electing the President of Kenya.

Verification did not occur in at least 4 stages of the electoral process.

Chief Justice Martha Koome grants a 15-minute health break.

4 IEBC Commissioners make their submissions

Paul Muite: As 4 commissioners of the IEBC, the court should treat their submissions as the view of a majority of the IEBC.

Apollo Mboya: Chebukati's actions can be evaluated by the oath commissioners took. The court should hold accountable all the co-conspirators.

Jotham Arwa: There was interference in upload & transmission of Forms 34A without the involvement of the 4 commissioners.

Gordon Ogola: The manner in which the election was managed up to tallying and declaration of results went against the Constitution. Chebukati unilaterally reassigned the 4 commissioners' duties to undertake at the National Tallying Centre at variance with what they had initially been assigned.

Njenga Jeremy: Only Chebukati can tell the court where the results he declared came from, they were not tallied, verified or processed by the IEBC or the commissioners.

Issa Mansour: Why was IEBC Chairman Wafula Chebukati in a hurry to announce the presidential election results when he had one more day to complete the work?

Chief Justice Martha Koome adjourns proceedings for the day. Day 2 of hearings to commence on September 1, 2022 at 9:00 a.m.

The 2022 consolidated presidential election petition enters Day 2 of hearings with the respondents taking the floor. Former AG Prof. Githu Muigai representing the IEBC will be assisted by Kamau Karori, Abdikadir Mohamed, Eric Gumbo, Mahat Somane, Willy Mutumba and Peter Wanyama.

Wafula Chebukati & others make their submissions

Prof. Githu Muigai: The IEBC and the chairman conducted the August general election strictly as per the guidelines given by the Supreme Court. This petition is ultimately about numbers and the petitioners have argued about everything else except numbers.

Karori Kamau: Nobody has challenged any document, the election was verifiable. None of the presidential agents has complained about tallying and verification at the National Tallying Centre.

Eric Gumbo: If there was interference with forms, there would be a lapse in time. No evidence has been presented about it. The forms were also serialised.

Mahat Somane: The claim of voter suppression cannot be supported by an analysis of the presidential votes as compared to senator votes. Variance only indicates a -500 difference.

The voter turnout announced at the national tallying centre at various periods prior to declaration of results is calculated based on the reporting polling stations as per the KIEMS kit and NOT on the total persons in the register as alleged.

Abdikadir Mohamed: The DCI was an impediment to the holding of elections and the functions of the IEBC at that time. Why would the Anti-terrorism police unit be involved in the tabulation and verification exercise at Bomas?

The four commissioners were negligent or ignorant of their duties. What did they mean when they said they wanted to "own" the results? They wanted to moderate a predetermined outcome.

On the 27 constituencies, Prof. Guliye was about to announce the results when violence broke out. It was not possible for him to announce.

Chief Justice Martha Koome adjourns proceedings for a lunch break. Hearings to resume at 2:00 p.m.

The Attorney General makes his submissions

George Oraro: The AG is completely neutral on the matter before the court. The AG office wants clarification on the chairman position for future election & how it impacts on other commissions. Is the executive role conferred on the chairman or is he part of the commission & can only act in community with the commission?

William Ruto & others make their submission

Fred Ngatia: Show us a ballot box that people from outer space came and voted into staffed into it and then all this hijacking in mid-air took place? There is no such evidence because that is a work of fiction. Not just conspiracy but a work of fiction.

Katwa Kigen: The process of verification of Form 34As took 6 days. It is our submission that the petitioner through his agents were happy with the process up to the last minute when the tallies were done and it reflected a win for a party other than the one they wished.

Katwa Kigen: The elections were not electronic; they were manual. Only voter registration, voter verification, voter identification and the results transmission were electronic.

Muthomi Thiankolu: Are you going to believe the man whose name combines the names of 2 saint names, John & Mark, and the 3rd name Githongo or Arnold Ochieng who produced documents disowned by all the presiding officers?

The petitioner claimed that Ruto was able to intercept 11,000 forms in 8 minutes & alter them; it is in the realm of fiction.

Melisa Ngania: No agent has demonstrated any problem with the voting at the polling station. If they are not present to certify their role, they should then not blame any person.

Prof. Kithure Kindiki: It is not humanly possible for the 7 commissioners to tally results emanating from 46,229 polling stations across the country. The right to franchise can not be subjected to the will and ego of 7 men and women. IEBC carried out verification, tallying and declaration of results in compliance with the law.

Kiragu Kimani: The question is where the petitioners' alleged fraudulent Forms 34A came from. Rule 9 of the Supreme Court presidential election rules requires that when a petitioner presents a petition, they will also furnish evidence. Has that been done? No.

Kioko Kilukumi: According to William Ruto, in the last 5 years, NSAC has not sat and discussed anything to do with elections. The visit by NSAC at the tallying centre was designed to intimidate Chebukati and influence the outcome of the election.

Fred Ngatia: The petitioner has repeatedly said that he will not participate in an election held by IEBC under Chebukati's chairmanship. Since the petitioner (Raila) will not participate in a fresh election and does not want to accept defeat, then, what does he offer? What is the solution that he offers? The solution he offers is that there be an election presided over by the Vice Chairlady of the IEBC. It will be a crisis of monumental nature and one which I don't think that you'd want to play with kind of fire because it will be fire upon the fire.

Chief Justice Martha Koome grants a 15-minute health break.

Chief Justice Martha Koome adjourns proceedings for the day. Day 3 of hearings to commence on September 2, 2022 at 9:00 a.m.

The 2022 consolidated presidential election petition enters Day 3 of hearings with both sides allowed time for rebuttal.

DCJ Philomena Mwilu: To Prof. Githu Muigai (appearing for Chebukati), on the question of voter turnout - bearing in mind that some Forms 34A indicated rejected ballots in addition to votes cast so that the figures in some 34A were not necessarily the same as those in Forms 34B or Form 34C - was the figure calculated from Forms 34A, 34B or 34C?

Wafula Chebukati & others respond to questions posed by the Supreme Court judges

George Murugu: On unutilized ballots, how they are accounted for - Regulations 69 (2), (2a), (3), 77 (e), 78 (3), (3d), 81 (b).

Was Chebukati an agent of the IEBC as national RO? - The gazettement was for the purpose of Article 138 (10) which places an obligation on the Chair to declare a result. He did not allocate himself a power he didn't have when he gazetted himself as the national RO.

Why didn't IEBC utilize extra day? - Results from the 27 constituencies had been tallied and verified.

Mahat Somane: On 30,000 variance between presidential & governor votes - Untrue, the variance was 24,000. Calculated from an average of 2 stray ballots per polling station.

Could a person have voted for one elective post & not another - No. Voters were handed 6 ballot papers, none left the polling station with a ballot.

On transmissions from KIEMS kits - Due to connectivity issues, kits reporting was tapered. Pictures taken by KIEMS kits were PDFs not JPEGs.

Voter turnout - IEBC records it to assess how many voters passed through the KIEMS kits, has no bearing on results.

READ: IEBC explains why Jose Carmago's name appeared on a suspicious Form34A

Prof. Githu Muigai: We were trying to create greater autonomy, and functional independence by adding independent commissions in the 2010 Constitution.

William Ruto & others respond to questions from the Supreme Court judges

Prof. Kithure Kindiki: 4 members of the NSAC knew the outcome of the presidential election before they went to Bomas of Kenya and Head of Public Service made a call to Chebukati. They were trying to interfere with the declaration of the results.
Chairperson did not utilize extra day to build consensus because it was not possible, they were determined to interfere.

Attorney General responds to questions from Supreme Court judges

George Oraro: Evidence before the court indicates that the Chairperson only became aware of the results of the presidential election after NSAC members left the National Tallying Centre. The role of the NSAC is to give advice on matters that impact security.