Three Critical Mistakes By IEBC That Forced Supreme Court To Nullify Election, Proof Of Hacking And Rigging

279] It is clear from the above that IEBC in particular failed to allow access to two critical areas of their servers: its logs which would have proved or disproved the petitioners’ claim of hacking into the system and altering the presidential election results and its servers with Forms 34A and 34B electronically transmitted from polling stations and CTCs. It should never be lost sight of the fact that these are the Forms that Section 39(1C) specifically required to be scanned and electronically transmitted to the CTCs and the NTC. In other words, our Order of scrutiny was a golden opportunity for IEBC to place before Court evidence to debunk the petitioners’ said claims. If IEBC had nothing to hide, even before the Order was made, it would have itself readily provided access to its ICT logs and servers to disprove the petitioners’ claims. But what did IEBC do with it? It contumaciously disobeyed the Order in the critical areas.

[280] Where does this leave us? It is trite law that failure to comply with a lawful demand, leave alone a specific Court Order, leaves the Court with no option but to draw an adverse inference against the party refusing to comply. In this case, IEBC’s contumacious disobedience of this Court’s Order of 28th August, 2017 in critical areas leaves us with no option but to accept the petitioners’ claims that either IEBC’s IT system was infiltrated and compromised and the data therein interfered with or IEBC’s officials themselves interfered with the data or simply refused to accept that it had bungled the whole transmission system and were unable to verify the data.

[281] The petitioners also made claims that some Forms 34A supplied to them did not relate to any of the existing gazetted polling station/tallying centres; that while 15,558,038 people voted for the presidential candidates, 15,098,646 voted for gubernatorial candidates and 15,008,818 voted for Members of Parliament (MPs) raising questions as to the validity of the extra votes in the presidential election. No satisfactory answer was given to the latter issue and we must also hold the 1st respondent responsible for that unexplained yet important issue.

Supreme Court of the Republic of Kenya

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