The High Court in Kisumu has dismissed a case seeking to compel the Independent Electoral Boundaries Commission (IEBC) to announce presidential results within seven hours of polling stations closure.
Monday, Justice David Majanja said the three petitioners failed to prove their case adding that IEBC is an independent commission that is not subject to the control or direction of any person or authority.
In the petition, Titus Alila, Jackline Otieno and Francis Ogada had argued that provisional results should be declared within at least six hours after the closure of polling stations, given the heavy investment in technology.
They claimed that delays in announcing the results could create room for rigging the elections and had asked the court to issue an order to have the results announced within seven hours.
In his ruling however, Justice Majanja said that the petitioners failed to demonstrate that the electoral agency is required by law to meet the demand on announcement of presidential results.
“The petitioners have not demonstrated that the IEBC is required by the constitution or the Elections Act, 2011 or any other law to announce the provisional results of the presidential election within seven hours of the closing of polling stations,” said Majanja.
As an independent body, he said, IEBC is not subject to the control or direction of any person or authority and is subject only to the constitution and the law adding that the court would only intervene if the electoral body violates the law.
“The IEBC has the discretion and flexibility to announce presidential results within the time prescribed by Article 138(10) of the constitution,” said Majanja.
Last week, the electoral body had said that it would not be possible to announce the results in less than 15 hours after the closing of the polling stations.
In a supplementary affidavit in response to the petition, IEBC Chairman Wafula Chebukati said several factors were bound to influence the time the agency announces the presidential results.
He said there was a likelihood of delays in some parts of the country, rendering the three voters’ demands impossible.
“The tallying process at constituency level is also dependent on the time the different polling stations deliver the results, which are received in no particular order and this, from experience, takes about 15 hours,” said Mr Chebukati.
And Monday, Justice David Majanja said that the constitution does not state that results must be announced within a specific time.
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“The question framed for determination is answered in the negative. It follows that the petition must now be dismissed. It is dismissed,” said Majanja.
Following the ruling, Kenneth Amondi, an advocate representing the three petitioners said that they will not appeal the ruling.