The electoral commission has been told it cannot alter the presidential election results announced by its returning officers in constituencies.
In a far-reaching judgement, five Court of Appeal judges today ruled that the results announced by each of the 290 returning officers are final.
This means that the presidential results announced at the constituency level will be final and all that will be done at the National Tallying Centre is addition of the results announced at the constituencies.
The court said that the section of the law that gives the Independent Electoral and Boundaries Commission or its chairman, Mr Wafula Chebukati, powers to make any alterations to the results is contrary to the provisions of transparency and accuracy.
“It is clear beyond peradventure that the polling station is the true locus for the free exercise of the voters’ will.
"The counting of the votes as elaborately set out in the Act and the Regulations, with its open, transparent and participatory character using the ballot as the primary material, means, as it must, that the count there is clothed with a finality not to be exposed to any risk of variation or subversion,” the judges ruled.
The appeal, which had been filed by the Independent Electoral and Boundaries Commission, came after the High Court ruled that presidential poll results announced in the 290 constituencies are final and should not be subjected to any alterations.
IEBC then moved to the appellate court to protest against the verdict issued by Justices Aggrey Muchelule, Weldon Korir and Enoch Chacha Mwita.
The Appeal Court judge Ouko said that “it is inconceivable that the details contained in those instruments can be considered as provisional and can be varied by the IEBC”.
The instruments referred to include forms 34, 36, 37 and 38 as well as certificates issued after announcement of the results.
And as if sending a warning to the commission, the judges pointed out that it is an offence for any of its employees, officials or commissioners to knowingly subvert the election process and that one is liable to imprisonment for a period of up to 10 years.
They also noted that Returning Officers are required by law to retain the tools used in announcing election results for a period of three months and that one can be fined a maximum of Sh500,000 for interfering with or mutilating poll materials.
This is bound to place more pressure on Returning Officers and give parties and candidates the motivation to ensure they have agents at every polling station to ensure the results announced are correct.
“The presiding officer will eventually take stock of the number of ballot papers issued to him by the appellant before the commencement of the voting, the number of ballot papers issued to voters; the number of spoilt ballot papers; and the number of ballot papers remaining unused.”
While noting some of the measures put in place to ensure credibility in elections, the judges also dismissed claims by IEBC and Attorney General Githu Muigai.
The ruling was a victory for the Opposition, which has contended that it is the electoral system that needed changing to ensure a credible election.
The Kriegler commission was set up in 2008 to inquire into all aspects of the 2007 General Election with particular emphasis on the presidential election.
“We bear in mind that presidential elections, where two or more candidates are nominated, are held in each constituency and the foregoing process is undertaken at the constituency, the details of which are recorded at the end of the exercise in Form 34.
"It is inconceivable that those details, arrived at after such an elaborate process, can be viewed as provisional, temporary or interim.
"The inescapable conclusion is that it is final and can only be disturbed by the election court,” the judges ruled.
They accused the IEBC and the AG of having a misconstrued understanding of what kind of verification the commission needs to do with such results.
They indicated that what IEBC needs to do is check which presidential candidate has met the threshold of more than half of the votes cast and counter-checking the accountability of ballots by confirming the number of those issued, used, unused and the spoilt ones.
The three judges delivered the verdict in the absence of two of their colleagues, Mr Justice Kathurima M’Inoti and Mr Justice Asike-Makhandia.
United Nations Special rapporteur Maina Kiai, Muslims for Human Rights’ (Muhuri) official Khelef Khalifa and Mr Tirop Kitur first moved to court in May last year.
They had separately filed cases while seeking a declaration that the presidential election results as declared by the constituency returning officers are final.
They sued the electoral agency and the AG but their cases were combined and determined as one at the High Court.
They were present in court but were represented by lawyers Willis Otieno and Prof Ben Sihanya.
The IEBC moved to the Court of Appeal on April 21 claiming that judges Aggrey Muchelule, Weldon Korir and Enoch Chacha Mwita erred by failing to distinguish the difference between announcement and declaration of presidential election results at the constituency level.
National Supper Alliance (Nasa) presidential candidate Raila Odinga welcomed the ruling, saying the path had been cleared for an Opposition victory as they would be no more tinkering with votes.
Commenting on the ruling, constitutional lawyer Wachira Maina said the judges had come round to agreeing with those who have argued for a long time that the veracity of a statement entry cannot supersede that of the deposit slip.
“In case of a problem with an entry, the deposit slip cannot be changed because the money was already received, counted and the bank gave its stamp of approval.”
But speaking in Meru today, President Uhuru Kenyatta hit out at Mr Odinga, saying his claims that Jubilee was plotting to rig the August elections was suspect.
“When a thief is found stealing, they try to draw attention away from themselves by pointing at innocent people.
"They are the ones who are planning to rig the elections. But the best way to prevent them from rigging is turning out in large numbers to vote for me in August,” the President said.