LIVE BLOG: Supreme Court verdict on Raila versus Ruto election case

The Supreme Court registrar announces 12:00 p.m. on Monday, September 5 as the time set for beginning delivery of the verdict.

Proceedings for the delivery of judgment begin as judges enter the courtroom. Chief Justice Martha Koome officially opens the sitting.

CJ Martha Koome: This is an abridged version of the judgment, the full judgment will be delivered after 21 days.

CJ Martha Koome: The reactions following the declaration of results of the presidential election of August 9, 2022 shows that the IEBC has not yet garnered universal confidence and trust in the management of the Commission and elections.

Issue 1: Did technology deployed by IEBC for the 2022 GE meet the standards of integrity, verifiability, security & transparency to guarantee accurate and verifiable results?

CJ Martha Koome: We are not persuaded by the allegation that the tech failed the standard of Article 86 (a) for the following reasons:-

• KIEMS kits failed in 234 areas but Forms 34A were duly developed
• Register released a week to election was used without any apparent anomalies
• Smartmatic was contracted because IEBC had no capacity, petitioners did not adduce any report showing compromised access

Issue 2: Was there interference in the uploading and transmission of results from polling stations to the IEBC public portal?

CJ Martha Koome: There were no significant differences between forms at the polling station and those uploaded to the public platform.

Our finding is that no credible evidence was presented to prove that anyone accessed the RTS to intercept Forms 34A before they were uploaded to the portal.

Affidavits from Celestine Opiyo and Arnold Oginga were not credible and are inadmissible.

Issue 3: Were Forms 34A fraudulently altered by a group situated at Karen under the direction of persons named? and Form 34A from Gacharaigu Primary School.

CJ Martha Koome: The two affidavits amount to double heresy and cannot be proved.

Gacharaigu polling station Form34A was sensationally presented by Julie Soweto on Jose Carmago turned out to be hot air and we were taken on a wild goose chase that yielded nothing of value. 2 KIEMS kits with the same serial number were a manufacturer's error.

Issue 4: Did postponement of gubernatorial elections in Kakamega and Mombasa, as well as 6 other areas, result in voter suppression to the detriment of Raila Odinga?

CJ Martha Koome: We've looked at the provisions of Section 55 (b) of the Elections Act which provides for circumstances when an election can be postponed... We are satisfied that Chebukati had the requisite power to postpone the elections in question.
We note that voter suppression is a political strategy that takes many forms...it has not been shown that in postponing elections IEBC acted in bad faith.

Issue 5: Were there unexplainable discrepancies between the votes cast for the presidential election and other elective positions?

CJ Martha Koome: Raila has not presented a single document that proves systemic ballot stuffing. The figure of 33,208 relied on in this claim is based on an unproven hypothesis.

Issue 6: Did the IEBC carry out verification, tallying and declaration of results in accordance with Articles 138 (3c) and 138 (10) of the Constitution?

CJ Martha Koome: Having considered all the submissions, we find that pursuant with Article 138 (3c):-

• The power to verify and tally the results of a presidential election as received at the National Tallying Centre vests not in the person of the IEBC Chair but in the Commission itself 
• The Chair cannot allocate himself the power to tally and verify the results to the exclusion of other members of the Commission

CJ Martha Koome: We take cognizance of the fact that the 4 IEBC Commissioners actively participated in the verification and tallying process from beginning up to and until just before the declaration of the results by the Chair.

• The 4 Commissioners did not provide information or any document to indicate that the elections were compromised or that the results would have substantially differed from what was declared by the Chair.
• IEBC carried out the tallying, verification and declaration of results in accordance with Article 138 (3c) and (10) of the Constitution of Kenya.

Issue 7: Did the declared president-elect attain the required 50%+1 of all votes cast?

CJ Martha Koome: The case raised by the petitioners was a data-specific threshold...  the ultimate yardstick... We are not persuaded by the amicus curiae's (LSK) brief, we reiterate that rejected votes cannot be taken into account when calculating whether a presidential candidate attained the 50%+1 threshold.

Petitioners did not provide a water-tight case. It is our finding that the declared president-elect attained the 50%+1 of all the votes cast in accordance with Article 138 (4).

Issue 8: Were there irregularities and illegalities of such a magnitude as to affect the final result?

CJ Martha Koome: We are of the view that the pointed irregularities and illegalities were not of such magnitude as to affect the final result of the presidential election.

Issue 9: What reliefs and orders can the court grant?

CJ Martha Koome: The jurisdiction of the court is clearly defined in Article 140,163 (3) of the Constitution.

Final Orders

1. A unanimous decision by the court finds that the Presidential Election Petition E005 of 2022 as consolidated with E001, E002, E003, E007 & E008 of 2022 are dismissed.
2. Declaration of 1st respondent William Ruto as president-elect is valid.
3. As a matter of public interest, all parties ordered to bear their own costs.