The Supreme Court has upheld Appeal Court’s decision to deny IEBC Chairman Wafula Chebukati powers to edit election results from constituencies.
The apex court in the land on Tuesday ruled that poll outcome as announced at polling stations in constituencies is final.
In their judgement, five judges of the court said where there are discrepancies between results in Forms 34A and 34B, the chairman should announce the results and leave the matter to the court.
The judges said Mr Chebukati has the duty to verify the results as transmitted electronically.
However, whenever he detects errors, he should notify the parties, observers and the public and leave it to the election court.
In a decision read by the Deputy Chief Justice Philomena Mwilu, the court said the chairman’s role of verifying the results was not an order made by them but a requirement of the Constitution and election laws.
They said the verification is meant to ensure accuracy and prevent election fraud.
Justice Jackton Ojwang read a concurring opinion while Chief Justice David Maraga, Justices Mwilu, Smokin Wanjala and Isaac Lenaola made the majority decision.
In his case, the IEBC stated that the application is not a review of the September 1 Supreme Court judgement.
The commission further said it is not an appeal against a decision of the Court of Appeal, popularly known as the Maina Kiai case, which ruled that the results once announced at the polling centres are final.
Through lawyer Kamau Karori, IEBC maintained that whereas the Supreme Court upheld the Maina Kiai case, the Judges in the majority decision explained that among the reasons they annulled the election, is because the commission did not verify the results by comparing Forms 34B against the results electronically transmitted Forms 34A.
In the Maina Kiai decision, the court ruled that the only verification the presidential returning officer can do is to confirm that the candidate has met the constitutional threshold stated in Article 138(4) of the constitution. The said Article states that a candidate must garner more than half of all votes cast in the election and at least 25 per cent of the votes cast in more than half of the counties.
However, the Supreme Court faulted Wafula Chebukati, who is national returning officer, of announcing the winner before comparing the results in Forms 34A and 34B.
The court stated, “There can be no logical explanation as to why in tallying the Forms 34B into Forms 34B into the Forms 34C, this primary document (Forms 34A) was completely disregarded.”
IEBC wants court to say what to do when poll results do not tally.