The National Super Alliance presidential candidate, Mr Raila Odinga, has asked the Supreme Court to nullify the presidential election held 10 days ago and order a fresh one.
In a petition filed late Friday night, just in time to beat the midnight deadline, Mr Odinga said the August 8 election was fatally compromised.
“It was so badly conducted and marred with such glaring irregularities that it does not matter who won, or who was declared the winner thereof,” Mr Odinga says in court papers filed jointly with his running mate, Mr Kalonzo Musyoka of Wiper.
The petition relies on a series of sworn statements by research and information technology experts among others to allege a string of errors in the process.
The statements also question the numbers emerging from the presidential election.
They allege that there were numerous instances in which votes were deducted from their ticket and added to President Uhuru Kenyatta, who was declared winner of the State House race on Friday last week.
The chairman of the electoral commission, Mr Wafula Chebukati, said that President Kenyatta had garnered 8,203,290 votes (54.2 per cent) against Mr Odinga’s 6,762,224 votes.
An affidavit by Dr Nyangasi Onduwo, who works as an economic advisor for Mombasa Governor Hassan Joho, alleges that he examined over 25,000 vote declaration forms and detected errors in 14,000 of them.
The errors ranged from unsigned documents, or the name of one presiding officer being shown as the official in charge of elections in multiple stations at the same time.
He also says that he found 443 instances of ungazetted polling stations, election results forms that had been filled out in the same handwriting, and forms that have a polling station, names and details of agents as well as their signatures but were blank in spaces meant to show results.
The court will have 14 days to test the veracity of these allegations.
Other documents allege that the votes cast in the presidential election (15,588,038) exceeded those for governors (15,098,646) and Members of the National Assembly (15,008,818) by 482,202 and 567,517 ballots respectively.
The law and the decisions of the courts before the election required a number of things done, including voting, electronic transmission of results, by image and text to tallying centre, and the display of results in a public portal that is accountable, verifiable and accurate.
These are the standards that determine whether or not results meet the constitutional threshold.
Nasa alleges that the IEBC flouted these principles and wants this used to nullify the results of the elections.
Most strikingly, by the time of announcing the final results, the commission’s chairman purported his numbers to be final.
This suggested he had received all the tallies from all the polling stations. According to Nasa, he had not.
Over 20 lawyers working on the court papers in Nairobi also included in the petition questions about the IEBC declaring results for the presidential election when it did not have documents for 11,883 polling stations.
“How then did the IEBC chair respond to Nasa’s enquiry by saying they have not received 5,015 Forms 34A?” one of the lawyers asked.
The petition alleges that returning and presiding officers were recalled to fill and adjust relevant results forms to ensure documents tallied with the final results announced.
Once the papers have been filed, Nasa will have two days to serve the respondents, including the electoral commission and the Jubilee Party.
The respondents will in turn have four days to file their responses.
A pre-trial conference will be held on the eighth day after the filing of the petition, after which the case will be heard every day until it is concluded.
However, the Supreme Court must give a ruling within 14 days.
If the court upholds President Kenyatta’s victory, that ruling will be final.
If it finds the election was flawed, a run-off between the incumbent and Mr Odinga must be held within 60 days.
Prof Kibwana has emerged as one of Mr Musyoka’s most trusted ally.