Posted: March 20, 2013 in OPINION


The contents of paragraph 2.3 of the Petition are incorrect to the extent that the Petitioner attributes the enactment of the Constitution to the Government of the Republic of Kenya, civil society and the private sector whereas the Constitution is in truth adopted and enacted by the people of Kenya. 

The 3rd Respondent having perused the Petition has noted that no Accusation is made against him.

The Petition is replete with falsehood and is a robust effort to exaggerate facts and circumstances which are intended to secure for the Petitioner an unjust advantage. The Petition in essence seeks to substitute the will of Kenya people who elected the 3rd Respondent in elections that were free, fair and credible by the standards established by law.

The 1st Respondent’s conduct of the election must also be assessed against the following novel circumstances;

For the first time in Kenya’s history, 6 elections were held simultaneously on the same day.

For the first time in Kenya’s history, portions of the electoral process were conducted through electronic means including voter registration.

The general election was the first one under the new Constitution.

The record registration of over 14 million voters.

Creation of 80 new constituencies and delimitation of new electoral units undertaken in 2011 pursuant to the provisions of Article 89 of the Constitution of Kenya.

The conduct of elections under a statutory framework for the creation of coalitions and a new Political Parties Act.

The conduct of elections that will lead to the first devolved system of Government in Kenya.

Significant delays in the enactment of electoral laws by Parliament which was compounded by several late stage amendments to such laws with the attendant consequence that the 1st Respondent’s schedule of executing the efficient conduct of the elections was disrupted.

A legal challenge and political opposition to the procurement process commenced by the 1st Respondent for BVI, BVR and electronic results transmission system.

The Constitution does not impose any duty on the 1st Respondent to use BVI, BVR and/or a system of transmitting election results electronically hence it is a fundamental misconception of the law for the Petitioner to contend that either registration of voters, identification of voters or transmission of the votes cast was required by law to be done via an electronic system.

At a press conference convened on 31st July, 2012,the Petitioner and several senior members of ODM called for a return to the manual system and declared that Kenyans did not want the BVR system. It is therefore the height of hypocrisy for the Petitioner to now claim that the only credible process of conducting elections must be founded on an electronic system.

Following consultations between the President, the Petitioner and the 1st Respondent, a decision was made to procure the BVR Kits from the Government of Canada in a Government – Government deal. The Cabinet meeting at which the decision was made was chaired by the President and the Petitioner. 

It therefore follows that the Petitioner had a critical role in the identification and eventual purchase of the BVR Kits. The Petitioner cannot therefore either found a cause of action arising from his participation in the purchase of the BVR kits and/or benefit from the ultimate partial failure of the electronic systems.

The notion that electronic voting systems are the only accurate, accountable, verifiable, transparent and efficient method of voter registration, voting and results transmission is not only fundamentally unsound in law but also factually incorrect. Such systems have failed all over the world in the past in the following instances:

(i) The BVR system crashed and/or failed in 2012 in the Ghana Presidential election.

(ii) Electronic voting systems failed during the 2000 Presidential election in the United States of America.

(iii) Electronic voting systems have failed, crashed and or mulfunctioned in numerous elections in Europe and in Municipal elections in the United States of America to the extent that legislation has been introduced in some jurisdictions requirement for a manual back up system in every election.

In excess of 800,000 people expressed their preference for the 3rd Respondent who are more than the total number of voters in 3 densely populated counties namely Tharaka Nithi, Kakamega and Bomet.

Every effort humanly possible was made to ensure that the voting method adopted by the 1st Respondent was simple, accurate, verifiable, secure, accountable and transparent.

The results announced were indeed accurate and verifiable in accordance with the standard established by law and were announced in a transparent and lawful manner as contemplated by Article 86 of the Constitution and the Election (General) Regulations, 2012.

The allegations at page 14 paragraph 5.2 of the Petition are false. In particular the 3rd Respondent states that the will of the people of Kenya expressed in a free fair and credible electoral process can not in law be overturned or subverted on the basis of a hypothesis. The petition correctly understood, is founded on a hypothesis incapable of proof; it is an expression of bitterness arising from the Petitioner’s loss of the poll and raises no legal issues capable of a judicial inquiry.

The allegations at page 16 paragraph 5.5 are false. The agents for all political parties present at the national tallying centre were not ejected from the tallying centre but rather provided with suitable alternative facilities within the tallying centre after the Petitioner’s supporters started shouting and mis-conducting themselves in a room which they and other agents had been allocated for verification of results. 

It is thus manifestly clear that the Petitioner’s attempt to impeach the entire electoral process and invalidate the results is an afterthought informed by the shock of losing the election rather than on any impropriety or irregularities by the 1st and 2nd Respondents.

The 3rd Respondent states that the burden of the Petitioner’s case is that the entire electoral process commencing with voter registration, voting and tallying of results and the declaration of results was invalid, null and void. The 3rd Respondent contends that the court is being invited to stage a coup against the constitutional governance of Kenya in that not only the Presidential election would be impugned but the Parliamentary, Gubernatorial, Senatorial and County Assembly elections would also be vitiated.

The Orders sought by the Petitioner are also mischievous and designed to cause disproportionate harm to constitutional governance in that they call for impeachment without legal basis of the only body established in law to conduct elections so as to trigger a crisis in the Executive and Legislative arms of Government that would enable the Petitioner to negotiate and/or bully his way to power in contravention of the Constitution.


I have actively participated in all aspects of the electoral process either directly or through agents of the Jubilee Coalition and TNA. I can unequivocally state that in my view the 1st Respondent and its staff, including the 2nd Respondent, have conducted the entire process with remarkable diligence, efficiency and in full fidelity to the standards established in the Constitution and all the electoral laws notwithstanding logistical and technological problems encountered on 4th March 2013. 

The difference between the votes cast in my favour and those cast in favour of the Petitioner is 832,887. In all humility, the said difference is very significant and emphatically demonstrates the resolve of the people of Kenya to exercise their free and sovereign will.

At a press conference held subsequent to the election the Petitioner disclosed that he would contest the results of the election in court because he believed that he won the election by 52% – 53% having been so advised by foreign journalists who had seen “exit polls” results prepared by an unknown entity. 

During the 21 months or so that the 1st Respondent has been in existence, it has outdone itself in establishing and overseeing the creation of a very solid statutory and legal framework for the conduct of free, fair and credible elections. In my very respectful assessment, which I humbly invite this Honourable Court to share, the 1st Respondent has also scrupulously complied with such statutory requirements within the limits of human capacity.

I am a firm and passionate believer in Kenyan institutions, some imperfections notwithstanding, and in the sovereign right of the Kenyan people to reform and improve such institutions without disparaging them in the manner the Petitioner has done. The 1st Respondent has, in my view, acquitted itself very well under very difficult circumstances and is to be commended and not vilified.

I am aware that soon after the BVR tender process commenced by the 1st Respondent was terminated in June 2012, the Petitioner and other senior members of ODM held a press conference at which they demanded that the 1st Respondent reverts to the manual registration of voters. I now produce a recording of the said press conference which is available at http://www.youtube.com/watch?v=ijnglywxdmQ and is produced to this court in electronic form contained in an envelope marked “UK9”.

I am also aware that in the United States of America, some states have taken the step of abandoning electronic systems in favour of ballot papers. I now produce an article published in Time Magazine on 3rd November 2007 titled “Voting out e-voting machines”. The article is marked “UK10”.

There is no legal requirement for the transmission of final election results electronically. Indeed, the 2nd Respondent is obliged by law to announce the results on the basis of manual Form 34’s.

In response to the allegation that Kencall co-hosted servers for TNA and the 1st Respondent, I now produce an affidavit sworn by Nicholas Alexander Nesbitt on behalf of Kencall setting the record straight. The affidavit is marked “UK14”. Also annexed hereto and marked “UK14A” is an affidavit sworn by an ICT expert Stephen Kanyatte Mwangi, which provides further clarification on pertinent issues.

I nevertheless wish to state very firmly that the allegation that the voter register was unlawfully tampered with after the registration period had ended so as to confer a benefit to me is deceitful, irresponsible and a false allegation peddled by the Petitioner so as to attract unjustified sympathy and inflame public passions.

Nearly all local and international observers and monitors who were accredited by the 1st Respondent have issued preliminary reports stating that the election was substantially free, fair and credible notwithstanding the minor irregularities and other logistical problems experienced during the election process.

The Petitioner has, subsequent to the announcement of the results, repeatedly stated that the election was “stolen” from him and that the 3rd and 4th Respondents are “criminals who should be in jail”. I now produce a video clip depicting the said speech by the Petitioner, which is in electronic form contained in an envelope marked ”UK 19”.

The Petitioner and his agents, particularly one Johnstone Muthama, have repeatedly engaged in hate speech and incitement in violation of the provisions of Article 33(2), the Electoral Code of Conduct and the National Cohesion and Integration Act so as to: 

Undermine the electoral process

Compromise the fair adjudication of this petition; and

Subvert the free and sovereign will of the people of Kenya expressed on 4th March 2013.

I now produce a summary of news reports marked “UK 20” which identify instances of show the Petitioner inflaming and inciting public passions before and after the elections.

The public utterances by the Petitioner since the election when seen against the orders sought in the Petition are so broad and ungovernable that it appears to me that the Petitioner seems intent on provoking a constitutional leadership crisis that would enable him to negotiate his way to government. The utterances by the petitioner demonstrate beyond peradventure that he would only consider an election free, fair and democratic if he were declared the winner. I urge this Honourable Court to protect this nation by rejecting this irresponsible and unlawful attempt to secure power notwithstanding the resounding loss suffered at the General Elections.

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