The National Super Alliance on Thursday claimed its presidential candidate, Mr Raila Odinga, is the winner of the election in a startling departure from the law.
It demanded that Mr Odinga and his running mate, Mr Kalonzo Musyoka, be given power because the results being declared are the product of alleged hacking.
The Independent Electoral and Boundaries Commission, the only body empowered by the constitution to count, tally and declare, is still tallying the results and might announce a winner Friday.
Nasa chief agent Musalia Mudavadi claimed that Mr Odinga was the winner in an election that otherwise has been lauded by observer missions as transparent, free and fair.
But last evening, IEBC dismissed Nasa’s claim that it has the final results in its servers as “grossly incorrect and premature” and described the document purported as having come from the commission as “plainly falsified”.
IEBC chairman Wafula Chebukati said the law does not envisage a situation where a candidate in an election demands that he be declared the winner based on results he has provided to the commission.
“The accurate and lawful result will thus only be ascertained once all the Form 34Bs are received by the Commission and the results therein collated.
"Your assertion that the accurate and lawful results are contained in the IEBC servers is grossly incorrect and premature,” he said.
Nasa had initially claimed that the IEBC servers had been hacked and the results manipulated.
Even if that were the case, the results forms — 34A and 34B, which are signed by all agents, including those of Nasa, confirming the results — are still intact and the election can be audited.
IEBC denied that their servers had been breached and the claim, and the logs provided by Mr Odinga, have since been discredited by independent ICT experts.
The logs are from a server running Microsoft software which IEBC does not use.
The official results by IEBC showed President Kenyatta leading with 8.1 million votes and Mr Odinga trailing with 6.7 million votes with 75 per cent of the polling stations counted.
The results are consistent with the performance of Nasa in other races, which show a poorer performance compared to Cord’s in 2013.
Mr Mudavadi presented a tally that would assume a voter turnout much higher than that captured by the IEBC.
They claimed their data came from a “source” within IEBC, whom they could not name for his or her own protection.
The election got praise from all observer missions which on Thursday made a point of holding back-to-back press conferences to express confidence in the electoral process.
Nasa’s declaration, though it might cause violent confrontations, is unlikely to succeed without the support of key members of the international community, notably the US, Britain, the European Union and possibly China.
None of those countries would support such a rejection of the legal process, especially after observers expressed confidence in the election.
Also, this is probably the first time in electoral history that information from an unnamed source is being used as the basis for a claim to power.
In democratic theory, governments, which are created and sustained by the law, are formed according to the law.
There is no provision in the current law for self-declared results.
Nasa’s declaration clearly violates the constitution and is impossible to defend.
Article 138(3)(c) provides: “After counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.”
The Constitution further emphasises this mandate of the IEBC in Article 138 (10) by stating: “Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall declare the result of the election; and deliver a written notification of the result to the Chief Justice and the incumbent President.”
Party agents and the parties legally have no role in the release or declaration of presidential results and are required to petition the Supreme Court if they are unhappy in the process set out in Article 140 of the constitution.
“We demand that the IEBC chairperson announce the presidential election results forthwith and declare Raila Amolo Odinga and Stephen Kalonzo Musyoka as the duly elected President and Deputy President of the Republic of Kenya respectively,” they said.
Nasa claims the results being shown by the IEBC are the product of hacking and are not supported by the results forms.
However, IEBC is now going through the process of confirming the results and expects to conclude by Friday noon.
So far, discrepancies between the results from the physical forms and what has been declared have been minor.
IEBC chairman Wafula Chebukati has denied the hacking claims, saying the attempt to get into the system was not successful.
The claim has also been denied by IEBC chief executive Ezra Chiloba.
During the shock announcement, Mr Mudavadi was accompanied by Mr Odinga, Mr Musyoka, Nasa deputy agent James Orengo, Machakos senator Johnston Muthama and Suna East MP Junet Mohammed.
Mr Odinga did not speak at the press conference, other than to whisper to Mr Mudavadi.
Mr Orengo said Mr Odinga would only speak if the situation demanded that he does so.
And even as they demanded that their candidate be announced the winner, Nasa said their agents were verifying the results at Bomas.
“We have expressed our doubts on the verification when they started posting results without the forms... We however have no reason to doubt the forms our agents have signed,” they said.
It is not clear why the coalition could not wait for the results captured in those forms to be tallied.
The law gives IEBC seven days to count and announce results.
They also demanded that IEBC allows parties to download copies of forms 34A and 34B, which back up results from polling stations and constituencies, respectively.
Asked how they could doubt the credibility of the elections even after observers gave them a clean bill of health, Mr Mudavadi said observers only asked questions about tallying after they raised the alarm.
“We have had our own brief with observers and this is a flaw they always make. Mischief is not always on the voting. None had gone to the tallying centre until we raised questions,” he claimed.
The leaders also raised concern about the delay in the tallying in the counties, saying it was an indication of mischief.
“We have collected a very large number of 34A forms, but certain areas have not submitted.”
The process is slow because election officials have to check and double check records since the forms can not be altered.
IEBC will probably announce the official results on Friday.
Mr Chebukati said that they expected the 47 county returning officers to avail all forms 34B, which contain the results by noon Friday before they can collate and make the announcement.
The Nasa news conference, which was set to be held at 10 in the morning on Thursday, was delayed for more than six hours, because, it has emerged, the leaders were meeting IEBC commissioners and observers.