Supreme Court Orders a Recount of Votes from 15 Polling Stations

The Supreme Court yesterday ordered a recount of votes cast in 15 polling stations following a request by Azimio-One Kenya presidential candidate Raila Odinga and his running mate Martha Karua who have challenged the declaration of William Ruto as president-elect.

In a ruling issued yesterday, the court directed the Independent Electoral and Boundaries Commission (IEBC) to conclude the exercise by 2pm today. This is to allow the registrar of the court to file her report by 5pm and thereafter, avail copies to all parties.

The seven-judge bench headed by Chief Justice Martha Koome said the inspection, scrutiny and recount will be conducted in Nandi Hills and Sinendeti Primary School in Nandi county, Belgut, Kapsuser and Chepkutum Primary Schools in Kericho county; Jomvi, Mikindani and Ministry of Water Tanks Polling Stations in Mombasa county; Mvita, Majengo and Mvita Primary Schools in Mombasa; Tinderet CONMO in Nandi county; Jarok, Gathanji and Kiheo Primary School polling stations  in Nyandarua county.

 Raila and Karua in their prayers not only sought to have a recount of the ballots in the 15 polling stations but also demanded that IEBC delivers all ballot boxes in respect to Bomet, Nandi, Kiambu, Kericho, Kirinyaga and Nyeri counties as well as in various constituencies including Gatundu North, Chepalungu, Konoin, Sotik, Kiambaa, Belgut and Nyali.

The court, however, declined to accede to the request on grounds that all the results of the Presidential Election including the Forms used to announce the results of the elections at the polling station and the constituency-tallying centre are in the custody of the court.  “That the ballot boxes for the polling stations be opened for inspection, scrutiny and recount,” reads the ruling.

During the scrutiny of the votes, the judges ruled that two agents would represent each Party during the exercises that shall at times be under the supervision of the Registrar of the Court and her staff.

 In their ruling delivered electronically, the judges also ordered that the error forms signed by IEBC chairperson Wafula Chebukati during the tally and verification exercise at the National Tallying Centre between 10th to 15th August 2022 be provided to the Applicants.

“That IEBC should provide certified copies of Forms 32A and 34C Book 2 used in the impugned election subject to the applicants providing to the IEBC specific contested polling stations for compliance thereof,” adds the ruling.

 They also ordered the commission to give the applicants supervised access to any server(s) at the National Tallying Centre for storing and transmitting voting information.

Further they asked IEBC to provide to the applicants copies of its technology system security policy comprising of password policy, password matrix, owners of system administration password(s), system users and levels of access, and workflow chats for identification, tallying, transmission, and posting of portals and any API’s that had been integrated and the list of human interface and controls for such intervention

 And to provide clarity on the IEBC systems and their usage for review and verification, the judges also directed the commission to avail partnership agreements with its technical partners, list of users, trail, and admin access.

 “IEBC is hereby directed to avail partnership agreements with its technical partners, list of users, trail, and admin access to provide clarity on the IEBC systems and their usage for review and verification,” notes the ruling.

 “The IEBC shall provide the applicants with certified copies of penetration tests conducted on the IEBC election Technology System prior to and during the 2022 General and Presidential Election including certified copies of a) all reports prepared pursuant to Regulation 10 of Election (Technology) Regulations, 2017, and b) certified copies of certificates by a professional(s) prepared pursuant to Regulation 10(2) of Election Technology) Regulations, 2017,” adds the ruling.

 On prayers by applicants asking IEBC to avail a soft copy of the voters register as well as be allowed to scrutinise the biometric voter register, the court declined to grant the said orders saying there was no need for such prayers as the register is already in the public domain.

 On access to all Kenya Integrated Election Management System (KIEMS) kits and servers for all Constituency Tallying Centres, the court said that such a request is unrealistic given the short timelines that they have while on the request of technological aspects of the presidential election petitions, they noted that the orders sought are not only vague but are not reasonable enough to help them reach a just and fair determination of the petitions.

 On the request by the petitioners seeking to have the terms of reference between Smartmatic International and Local Service Providers, the judges noted that  there may be legal issues that may arise that the Court cannot blindly grant such orders.