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REPUBLICOFKENYA

INTHESUPREMECOURTOFKENYAATNAIROBI

ELECTIONPETITIONNO.1OF2017

BETWEEN

H.E.RAILAAMOLOODINGA..…………...………….……...1STPETITIONER

H.E.STEPHENKALONZOMUSYOKA..….....……..…….....2NDPETITIONER

AND

INDEPENDENTELECTORALAND

BOUNDARIESCOMMISSION............……………...….…...1STRESPONDENT

THECHAIRPERSONOFINDEPENDENT

ELECTORALANDBOUNDARIESCOMMISSION..............2NDRESPONDENT

H.E.UHURUMUIGAIKENYATTA………......…………..3RDRESPONDENT

RESPONSETOPETITION

InresponsetothePetition,the1stand2ndRespondentsstateTHAT:

1. Savewhatishereinexpresslyadmitted,the1stand2ndRespondentsdeny

eachandeveryallegationoffactassetoutinthePetitionasifthesame

werehereinsetoutverbatimandtraversedseriatim.

2. The1stRespondentisestablishedunderArticle88oftheConstitution.It

is charged with the exclusive mandate of conducting or supervising

referendaandelectionstoanyelectivebodyorofficeestablishedbythe

Constitution, and any other elections as prescribed by an Act of

Parliament.The1stRespondentisaccordedthestatusofanindependent

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constitutional commission pursuant to Article 248 (2)(c) of the

Constitution with the principal purpose of, inter alia, protecting the

sovereigntyofthepeople.

3. In carrying out its duties under Article 88 of the Constitution, the 1st

RespondentisenjoinedbyArticle249(2)oftheConstitutiontoexercise

itspowerssubjectonlytotheConstitutionandnationallegislation.

4. The 1st and 2nd Respondents (hereinafter “the Respondents”) admit

paragraphs1,2,3and4ofthePetitioninsofarasthesamearemerely

descriptive of the parties save that their addresses of service for the

purposes of this Petition is care of V.A. Nyamodi & CO. Advocates,

LowerhillDuplexApartments,LowerhillRoad,Upperhill,P.O.Box51413

– 00200Nairobi and Iseme, Kamau andMaemaAdvocates, IKMPlace,

TowerA,1stFloor,5thNgongAvenue,OffBishopsRoadP.O.Box11866-

00400,Nairobirespectively.

5. TheRespondents conducted ageneral electionon the8thAugust, 2017

andforthepresidentialelection,thefollowingcandidatescontestedand

theresultswereasbelow-

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NAMEOF

CANDIDATE

VALID

VOTES

%OF

VOTES

CAST

NO. OF COUNTIES THE

CANDIDATES ATTAINED AT

LEAST 25% OF THE TOTAL

VALIDVOTESCAST

JohnEkuru

Longoggy

Aukot

27,311 0.18% 0

Mohamed

AbdubaDida

38,093 0.25% 0

Shakhalaga

KhwaJirongo

11,705 0.08% 0

Japheth

KavingaKaluyu

16,482 0.11% 0

Uhuru

Kenyatta

8,203,290 54.27% 35

Michael

Wainaina

Mwaura

13,257 0.09% 0

JosephWilliam

NthigaNyaga

42,259 0.28% 0

RailaOdinga 6,762,224 44.74% 29

6. ThetallyingprocessconfirmedthatUhuruKenyatta,the3rdRespondent

herein, garnered the largest number of votes and satisfied the

constitutional thresholdsetout inArticle 138 (4)of theConstitutionby

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receivingmorethanhalfofallthevotescastintheelectionandatleast

twenty fivepercentof thevotescast ineachofmore thanhalfof the

counties.

7. The Respondents aver that the presidential election was conducted in

accordance with the Constitution, the Independent Electoral and

Boundaries Commission Act, the Elections Act, the Regulations

thereunderandallotherrelevantprovisionsofthelaw.ThePetitioners’

allegations as contained in paragraph 5 of the Petition are couched in

generalities,misplacedandwithoutfactualbasis.

8. The Petitioners’ allegations of massive, systemic, systematic and

deliberate non-compliance with the Constitution and the law in

paragraph 6 of the Petition are couched in generalities and

misconceived. The Respondents aver that the presidential election

process was backed by an elaborate electoral management system

supported by various electoral laws, which included several layers of

safeguards to ensure an open, transparent, participatory and

accountable system to guarantee free and fair elections pursuant to

Article81asreadtogetherwithArticle86oftheConstitution.

9. TheRespondentsaverthatthecontentsofparagraphs7,8,9&10ofthe

Petitionarerestatementsofthelawanddonot,withoutmore,present

requisite grounds of a Petition under Rule 8 of the Supreme Court

(PresidentialElectionPetition)Rules,2017.

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10. Inresponsetoparagraphs11&12ofthePetition,theRespondentsstate

that the Petitioners have not pleaded how and inwhatmanner the 1st

Respondentabdicateditsroleanddutyasalleged.TheRespondentsaver

that the sovereign power of the people was exercised through the

presidential election held on 8th August, 2017. In conducting the said

elections,the1stRespondentdischargeditsmandateinaccordancewith

theConstitutionandtheapplicablebodyofelectorallaws.Theallegation

that the 1st Respondent was “an institution and law unto itself” is

unfoundedandhasnotbeensubstantiated.

11. In further response toparagraph 12of thePetition, the 1st Respondent

denies the allegation that it abdicated its role and duty to exercise,

protectandsafeguardthesovereignwillofthepeopleofKenya.Onthe

contrary, the 1st Respondent managed and conducted the presidential

election in accordance with the Constitution, the Elections Act and all

governingstatutes.

12. In response to paragraphs 13 and 14, the Respondents state that the

allegationsarevagueandcouchedingeneralitiesandlackparticularsas

requiredbylaw.TheRespondentsreiteratethatthepresidentialelection

was conducted in accordance with the Constitution, the Elections Act

and all governing statutes and was not marred with irregularities as

allegedbythePetitioners.

13. Inresponsetoparagraph15ofthePetition,theRespondentsstatethat

they verified and accurately tallied the results of all the candidates in

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declaring the results of the presidential elections in accordance with

Article138(10)oftheConstitution.

14. TheRespondentsdenytheallegationinparagraph16ofthePetitionand

statethatindeclaringtheresultsofthepresidentialelection,effectwas

given to the sovereign will of the people of Kenya. The Respondents

denythevagueandunsubstantiatedclaims.

15. In reply to paragraph 17 of the Petition, the Respondents state that

Section83oftheElectionsActprovidesasfollows-

Noelectionshallbedeclaredtobevoidbyreasonofnon-compliance

withanywritten law relating to thatelection if it appears that the

electionwasconducted inaccordancewiththeprinciples laiddown

in the Constitution and in that written law or that the non-

compliancedidnotaffecttheresultoftheelection.

16. The Respondents further state that the presidential election was

conducted in accordance with the Constitution, the Elections Act and

Regulationsthereunderandallotherrelevantstatutes.

17. The Respondents deny the vague and generalised allegation in

paragraph18ofthePetitionandstateinresponsethattherejectedvotes

didnotaccount forat least 2.6%of the total votes cast asalleged.The

total numberof rejectedballotswas81,685asdeclared in Form34C, a

percentageof0.54%ofthevotescast.

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18. In response toparagraphs 19, 20&21of thePetition, theRespondents

statethattheSupremeCourtinPresidentialElectionPetitionNo.5of2013,

RailaOdingavIndependentElectoralandBoundariesCommission&Others,

considered the provisions of the Constitution, the Elections Act and

Regulations thereto inarrivingat itsdecision.ThePetitioners claim isa

matter for submissionsanddoesnotconstituteacomplaintarisingout

of the conduct of the 2017 Presidential elections. In any event, the

SupremeCourtdecisionwasacorrect interpretationofthe lawandthe

minority decision in the Seychelles Constitutional Court was upheld by

the Seychelles Court of Appeal in the case of Popular Democratic

MovementvElectoralCommission(2011)SLR385.

(a) violation of the principles of a free and fair election and electoral

process

19. The Respondents deny the allegation in paragraph 21.1 of the Petition

that they contravened the principles of a free and fair election under

Article81(e)oftheConstitutionasreadtogetherwithSection39ofthe

Elections Act and the Regulations thereunder. On the contrary, the

Respondentsreiteratethattheyconductedtheirelection inaccordance

withtheConstitution,theElectionActandtheRegulationsthereto.

RelayandTransmissionofResults

20. Inresponsetoparagraph21.2,theRespondentsstatethattheprocessof

relay and transmission of results from the polling stations to the

constituency and National Tallying Centre (NTC), and from the

constituencytallyingcentretotheNTCwassimple,accurate,verifiable,

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secure, accountable, transparent, open and prompt. This process

securedafreeandfairelectionasrequiredbyArticle81(e)(iv)and(v)of

theConstitution.Inparticular,theRespondentsstatethat:-

a. Upon the close of polling, the votes cast were counted and the

resultswere then recorded in Forms 34A, an image of the Form

34Awascapturedby theKenya IntegratedElectionManagement

System (KIEMS) kit and the statistics in the Form34Awere then

entered into the KIEMS kits at all polling stations. The presiding

officer would then simultaneously relay the statistics and the

image of the Form 34A to the relevant constituency returning

officerandtotheNTC.

b. ThecompletionofthetransmissionoftheimageofForms34Awas

dependent on the availability of 3G or 4G network coverage. In

respect of areas lacking 3G or 4G network coverage, the

Respondents established alternative mechanisms to ensure

completionintransmissionoftheimageoftheForm34A.

c. In accordance with Section 39 (1C) of the Elections Act, the 1st

RespondentpublishedtheimagesofForms34Aand34Binrespect

ofthepresidentialelectiononitspublicportal.

d. The Respondents aver that all polling stations transmitted the

statistics of the results through KIEMS accompanied by the

electronicimageofForms34A.

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e. At the time of the declaration of the results of the presidential

election, the Respondents had in their possession all the forms

required in lawforpurposesofadeclarationoftheresultsofthe

presidentialelection.

f. The Respondents state that the procedure adopted in the

transmissionandtallyingofresultsofthepresidentialelectionwas

in conformity with the decision of the Court of Appeal in Civil

Appeal No. 105 of 2017, Independent Electoral and Boundaries

Commission v. Maina Kiai, & 5 Others. The allegation by the

Petitionersthatthe1stRespondentdeliberatelypre-determinedand

setitselfonapathofsubvertingthelawandbeingalawuntoitself

thereforelacksmerit.

g. The Respondents reiterate that the presidential election was

conductedinaccordancewithArticle81(e)(v)oftheConstitution,

the Elections Act and the Regulations thereunder and that the

results of the presidential election were declared in accordance

with Article 138 (10) of the Constitution. In reply to paragraph

21.2.2.6.2, the Respondents state that the results were declared

aftertallyingoftheresultsinallstatutoryformsrequired.

h. The Respondents state that the allegation in paragraph 21.2.3 is

incorrect. The statistics entered into the KIEMS kitswas not the

resultandisthereforenotcomparablewiththeresultsrecordedin

Forms34A.Iftherewereanydiscrepanciesinthestatisticsentered

in theKIEMS kits,which is denied, thesewould be as a result of

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inadvertenthumanerrorduringthetransferoffiguresfromForms

34A to the KIEMS kits. The said discrepancies, if any, did not

materiallyaffecttheoutcomeofthepresidentialelections.

i. The Respondents aver that the declaration of the results of the

presidentialelectionwasonthebasisofresultscontainedinForms

34B from each of the 290 constituencies and the diaspora. The

results contained in Form 34B is an aggregation of Forms 34A in

each constituency. In the circumstances, the results declared by

the 2ndRespondentwerenot affectedby any variancesor errors

thatmayhaveoccurredatthepointofdataentryintoKIEMS.

j. The Respondents deny the allegation that in more than 10,000

polling stations, data entered in KIEMS was not consistent with

information and data from the respective Forms 34A. The data

entered in KIEMS was statistics. The result of the election from

each polling station was contained in Forms 34A. It is therefore

incorrect to compare the statistics entered in KIEMS with the

resultsfromeachpollingstationascontainedinForms34A.

k. Inviewoftheforegoing,thepresidentialelectionwasconducted

inanimpartial,neutral,efficient,accurateandaccountablemanner

inaccordancewithArticle81(e)oftheConstitution.

l. In response to paragraph 21.2.4, the Respondents aver that the

resultscontainedinForms34Btallywiththeresultsobtainedfrom

thepollingstationsassetoutinForms34Awhicharetheprimary

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data entry forms. Any isolated cases of discrepancies and/or

inconsistenciesbetweentheresultsascontainedinForms34Aand

Forms 34Bwhich is denied, arose from inadvertent human error

during the process of tallying and verification of the results

contained in the Forms 34A. The said errors, if any, did not

materiallyaffecttheoutcomeoftheelections.

m. TheRespondentsdeny thecontentsofparagraph21.2.5andaver

that the role of the constituency returning officer as set out in

Regulation 83 (1) of the Elections (General) Regulations, 2012 is

limitedtotallyingandverifyingthecountofthevotesascontained

in Forms 34A from the polling stations, declare the result of the

electionanddelivertothe2ndRespondentthecollatedresultsfor

theelectionofthepresidenttothenationaltallyingcentre.

n. Inturn,the2ndRespondent’sroleistotallytheresultsreceivedat

thenational tallying centre as setout inRegulation83 (2)of the

Elections(General)Regulations,2012.

o. TheRespondentsreiteratethecontentsofparagraph20(l)above

and aver that if there were any inaccuracies, the same were

minimal and occasioned by inadvertent human error and not

deliberate and calculated as alleged by the Petitioners. The

allegation by the Petitioners that the inaccuracies and

inconsistencies affect and account for at least 7 million votes is

false and fails to satisfy the evidentiary threshold required to

validatethatfactualassertion.

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p. With respect to the allegation that the results in Forms 34B are

materially different from what the 1st Respondent relayed

containedinparagraph21.2.6,the1stRespondentrestatesthatthe

numbersenteredinKIEMSwasstatistics.Theresultoftheelection

fromeachconstituencywascontainedinForms34B.Itistherefore

incorrecttocomparethestatisticsentered intheKIEMSkitswith

theresultsfromeachconstituencyascontainedinForms34B.

q. Inresponsetoparagraph21.2.7ofthePetition,the1stRespondent

states that in compliance with its constitutional and statutory

obligation to ensure transparency of the electoral process, it

publiclyrelayedthestatisticstransmittedfromthepollingstations

on a public portal, which statistics were available to the public,

including the media. The allegation that the 1st Respondent

deliberately created a false narrative is incorrect. To the

Petitioners’ knowledge, the Respondents clarified that the

statistics on the public portal were not the results of the

presidentialelection.

r. The2ndRespondentconfirmsthatatthetimeofthedeclarationof

theresultofthepresidentialelection,hehadinhispossession290

Forms34Bfromalltheconstituenciesandthediaspora.

Impartiality,neutrality,efficiency,accuracyandaccountability.

21. Inresponsetoparagraph21.3ofthePetition,theRespondentsaverthat

thepresidentialelectionwasconductedinanimpartial,neutral,efficient,

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accurate and accountable manner. The Respondents complied with

Article 81(e) (v) as read togetherwith Sections 39, 44 and 44A of the

Elections Act, the Regulationsmade thereunder and Section 25 of the

IndependentElectoralandBoundariesCommissionAct.

22. The Respondents deny the allegation that it selectively manipulated,

engineeredordeliberatelydistorted,inflatedorinterferedwiththevotes

castandcountedinfavourofthePetitionersand/orthe3rdRespondent

or that there was any systemic and systematic manipulation and

distortion of the results as alleged in paragraphs 21.3.1 - 21.3.5 of the

Petition . The Respondents confirm that the results of the presidential

election declared by the 2nd Respondent were based on the results

indicatedinForms34Bwhichconfirmedthatthe3rdRespondentmetthe

constitutionalthresholdsetoutinArticle138(4)oftheConstitution.

Lackandfailureofoperationaltransparency

23. In reply to paragraph 21.4, the Respondents aver that the presidential

electionwasconductedinanopenandtransparentmanner.

24. Inresponsetoparagraph21.5,21.6and21.7,theRespondentsaverthatin

the conduct of the presidential election, they were guided by the

decisionoftheCourtofAppealinCivilAppealNo.105of2017,Independent

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Electoral and Boundaries Commission v. Maina Kiai, & 5 Others as

demonstratedbelow-

a. The 1stRespondentcollated, talliedandelectronically transmitted

theresultsofthepresidentialelection.

b. Theresultsdeclaredattheconstituencytallyingcentreswerefinal.

c. Inresponsetoparagraphs21.5.3to21.5.5and21.12ofthePetition,

the Respondents state that in compliance with its constitutional

and statutory obligation to ensure transparency of the electoral

process, the statistics from thepolling stationswere transmitted

simultaneouslywithscannedimagesoftheForms34Aand34Bby

thepresidingofficers in thepollingstationsand theconstituency

returningofficersrespectivelytotheRespondents.

d. The1stRespondentuploadedthesaidstatisticsand imagesonan

online portal accessible to the public, including the media. The

Respondents however clarified that the said statistics did not

constitute the results of the presidential election. The

Respondents further state that the data displayed on the public

portalwasstatisticsandnotresultsasalleged.

e. TheRespondents deny the allegations at paragraph 21.5.6 of the

Petition. The Respondents did not eject any of the Petitioners’

agentsfromanypollingstation.

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f. Inresponsetoparagraph21.5.7,theRespondentsdenythatthere

were in excess of 14,000 defective returns from the polling

stationsasalleged.

25. In reply to paragraph 21.8, the Respondents reiterate the averments

contained in paragraph 24 and deny the allegation that they declared

incorrectfinalresultsasalleged.

26. The1stRespondentdeniestheallegationscontainedinparagraph21.9of

the Petition and states that it conducted the presidential election in

accordancewiththeConstitution,theElectionsActandtheRegulations.

Verifiability

27. TheRespondentsdenytheallegations inparagraph21.10andstatethat

theresultsdeclaredbythe2ndRespondentwereinaccordancewiththe

Constitution,theElectionsActandallotherrelevantstatutes.

28. The information in Forms 34A is consistent with the results tallied in

Forms34B.

29. The information inForms34Bwasaccurateandverifiable.Asexplained

above,thestatisticscontainedinthepublicwebsitewerenottheresult

oftheelection.

30. The Respondents aver that the presidential election met the

requirementsofArticle81(e)(iv)asreadtogetherwithArticle86ofthe

Constitution.

(b) Voting,countingandtabulationofresults

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31. Theallegationsinparagraph22.1and22.5areincorrect.TheRespondents

state that the results from the polling stations and the constituency

tallying centres were counted, tabulated and accurately collated in

compliance with Article 86 (b) and (c) of the Constitution as read

togetherwiththeElectionsAct.

32. In response toparagraph22.2of thePetition, theRespondents restate

the averments in paragraph 23 (i) and (p) above. The Respondents

further aver that there were no inconsistencies in the votes cast as

capturedinForms34AandForms34B.

33. Inresponsetoparagraph22.3and22.4ofthePetition,theRespondents

averthattheresults inForms34B includeallpollingstationswithinthe

constituencies. The Respondents deny that the said results are

inaccurate in mathematical additions in favour of the 3rd Respondent.

TheRespondentsputthePetitionerstostrictproofofanyavermentto

thecontrary.

(c) Substantivenon-compliance,irregularitiesandimproprieties

34. The Respondents aver that the presidential election was conducted in

accordance with Articles 38, 81 and 86 of the Constitution as read

togetherwith Sections 39 (1C) andSection44of theElectionsAct and

theRegulationsthereunderandSection25oftheIndependentElectoral

andBoundariesCommissionAct.

Ungazettedandundesignatedpollingstations

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35. The1stRespondentaversthatitdischargeditsmandateunderRegulation

7 (1)(c) of the Election (General Regulations) 2012 and published in

GazetteNoticeNumber6396 of 26th June 2017 anotice specifying the

polling stations established for each constituency. The 1st Respondent

aversthatitdidnotestablishanysecretandungazettedpollingstations

asallegedbythePetitionerinparagraph23.1ofthePetitionoratall.

36. The 1st Respondent states that there were no results from any

ungazettedpollingstationthatwereincludedinthefinaltallyasalleged

inparagraph23.2ofthePetition.ThePetitioner isputtostrictproofof

anyavermenttothecontrary.

Ungazettedandundesignatedreturningandpresidingofficers

37. Inresponsetoparagraph23.3ofthePetition,the1stRespondentstates

that all Forms 34B were executed by duly gazetted and accredited

constituencyreturningofficers.

38. In response toparagraph23.4of thePetition, the 1stRespondentavers

that all the Forms 34B were valid, signed and/or stamped by the

constituency returning officers in accordance with the Election

Regulations.

39. The 1st Respondent avers that it complied with the requirements of

Regulation 5of theElection (GeneralRegulations) 2012 andprovided a

list of the persons proposed for appointment as presiding officers to

politicalpartiesthroughtheofficeoftheRegistrarofPoliticalParties.It

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isthereforenotcorrectthatasignificantnumberofreturnsweresigned

bystrangersasallegedinparagraph23.6ofthePetition.

Improperandinvalidreturns

40. The 1st Respondent denies the vague allegations in paragraphs 23.7,

23.7.1 and 23.7.3 of thePetition and states that all the Forms 34A and

Forms 34B used in the presidential election were in accordance with

Regulation79(2)(a)and87(1)(a)oftheElection(GeneralRegulations)

2012.

41. The Respondents denies the allegations in paragraphs 23.7.2 of the

Petition and puts the Petitioners to strict proof thereof. The 1st

Respondent further avers that to the extent that there were only 291

Forms34B,thePetitioners’referenceto14,078and25,000Forms34Bis

misplaced.

42. TheRespondentsdenytheallegationsinparagraphs23.7.4and23.7.5of

thePetitionandaverthatallForms34Aweresignedandfinalisedatthe

polling stations.No Forms 34Ahavebeen alteredor tamperedwith as

alleged.

43. Inresponsetoparagraphs23.7.6to23.7.20,theRespondentsstatethat

theForms34AandForms34Bbearvarioussecurityfeaturestosafeguard

against introductionofforeignforms.TheRespondentsfurtherstateas

follows:-

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a) AllForms34AandForms34Bweresignedand/orstampedasrequired

underthelaw.

b) TheRespondentsdenytheallegationthatanumberofForms34Bdid

not indicate the names of the returning officers and put the

Petitionerstostrictproof.

c) The Respondents deny the allegation that a substantial number of

Forms34AandForms34Bdonotbearthe1stRespondent’sstampor

authenticstampandputthePetitionerstostrictproof.

d) The Respondents deny the allegation that a substantial number of

Forms 34A and Forms 34B do not bear the signatures of the

candidates’ agents or the reason for refusing to sign and put the

Petitioners tostrictproof. Inanyevent, therefusalbytheagentsto

signthesaidformsdoesnotinvalidatetheresultsannounced.

e) TheRespondentsdeny theallegation that the samepersonwas the

presiding officer in a considerable number of polling stations in

different areas and put the Petitioners to strict proof. The

Respondents state that the 1st Respondent appointed presiding

officersinrespectofeachofthepollingstationsinthecountry.

f) In response to paragraphs 23.7.11 to 23.7.14 of the Petition, the

RespondentsaverthatthereisnoobligationunderRegulation87for

the constituency returningofficers to indicate thenumberof Forms

34Ahandedovertothem.TheintegrityofForms34AandForms34B

wasnotcompromisedandtheresultscontainedthereinarevalid. In

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anyevent,theallegedirregularities,ifany,donotrendertheForms34

invalidanddonotaffectthefinalresult.

g) TheRespondents states that the results of the presidential election

were declared on the basis of the aggregate of Forms 34B which

reflectedthewillofthepeople.Theallegationthatthe1stRespondent

manufacturedtheresultsofthepresidentialelection isfalseandhas

notbeensubstantiated.

h) The Respondents deny that 14,078 Forms 34A have fatal and

irredeemable irregularitiesasallegedbythePetitioners inparagraph

23.7.16ofthePetitionandputthePetitionerstostrictproof.

i) In response to paragraphs 23.7.17 to 23.7.19 of the Petition, the

Respondentsstatethatatthetimethedeclarationoftheoutcomeof

the presidential election by the 2nd Respondent, the 1st Respondent

had received all the statutory forms required for purposes of the

declaration.ThePetitioners’allegationthatthereareinexcessof3.5

millionvotesoutstandinglacksmeritandhasnotbeensubstantiated.

j) The Respondents deny the allegations in paragraph 23.7.20 of the

Petitionandaver thatallForms34Awereprocessedand the results

declaredinaccordancewiththelaw.

Contradictoryandinconsistentoperationalprocedures

44. In responsetoparagraph23.9 to24, the 1stRespondentstates that the

instructionsgivento itsstaffwereconsistentwiththeConstitutionand

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thelawasinterpretedbytheHighCourtandtheCourtofAppeal.There

was therefore no non-compliance with the law as alleged by the

Petitioners.

45. The 1st Respondent avers that if there were any irregularities or

improprieties,whicharedenied,thesamewerenotmaterialanddidnot

affecttheintegrityoroutcomeofthepresidentialelection.

(d) Rejectedvotes/ballots

46. In responsetoparagraph25of thePetition, theRespondentsaverthat

thenumberofrejectedballotsinrespectofthepresidentialelectionisas

declaredbythe2ndRespondent inForm34Cwhich is81,685andnotas

allegedbythePetitioners.

47. In response to paragraphs 26 and 27 of the Petition, the Respondents

averthatthepresidentialelectionwasconductedinaccordancewiththe

Constitutionandthelaw. Theresultofthepresidentialelection isclear

andthereisthereforenobasisforanexamination,auditorscrutiny.

48. In response to paragraph 28 of the Petition, the 2nd Respondent avers

that the result of the presidential election was as contained in the

aggregateof Forms 34B andnot thepublic portal. The statistics in the

publicportaldidnotaffecttheoutcomeoftheresultofthepresidential

electionasdeclaredbythe2ndRespondent.

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49. TheRespondentsstate inresponsetoparagraph29ofthePetitionthat

rejected ballots were properly excluded from valid votes by the

Respondentsinaccordancewiththelaw.

e)Othercontraventionsandviolations

ContraventionofArticle35(2)oftheConstitution

50. The Respondents reiterate that the statistics in the public portal were

nottheresultsofthepresidentialelectionandthe1stRespondentdidnot

violate or contravene the Petitioners’ rights under Article 35(2) of the

Constitutionasallegedinparagraph30ofthePetition.

Intimidationandimproperinfluence

51. The Respondents deny that the presidential election was marred or

significantly compromised by intimidation, improper influence or

corruptionasallegedinparagraphs31and33ofthePetition.

52. TheRespondentsarestrangerstotheallegationsinparagraphs32ofthe

Petitionandareunabletopleadthereto.

53. Inresponsetoparagraphs34theRespondentsstatethatthepresidential

electionwasconducted,administeredandmanaged inaccordancewith

Articles38,81and86oftheConstitutionandtheElectionsActandthe

regulationsthereto.

54. Inreplytoparagraph35ofthePetition,theRespondentsstatethatthe

presidential election was free, fair and in accordance with the

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Constitution. The Respondents gave effect to and respected the

sovereignwillofthepeopleofKenya.

QuestionsorissuesfordeterminationbytheCourt

55. TheRespondentsstatethatasresultoftheforegoingaretheissuesfor

determinationbytheCourt:-

(a) Whetherthe3rdRespondentwasvalidlyelectedanddeclaredthe

Presidentelectby2ndRespondentduringthepresidentialelections

heldon8thAugust2017.

(b) What consequential declarations, orders and reliefs should this

HonourableCourtgrant.

REASONSWHEREFORE,theRespondentsinvitethisHonourableCourttofind

andholdthat:

(a) TheRespondentswerenotinbreachofanddidnotcontravenethe

provisionsof theConstitution, theElectionsActorofanyother

statute;

(b) The presidential election was conducted in accordance with the

ConstitutionandtheElectionsActandallotherrelevantstatutes

and a valid declaration of the outcome of the presidential

electionmade;

(c) The 3rd Respondent was validly elected as the President of the

RepublicofKenya;

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(d) ThepeopleofKenyaexercisedtheirsovereignpowerof thevote

andtheirdecisionshouldberespected;

(e) ThePetitionlacksmeritandshouldbedismissed;and

(f) ThePetitionersshouldbearthecostsofthePetition;

DATEDatNAIROBIthisday24thdayofAugust2017

V.ANyamodi&Co.

Advocatesforthe1stRespondent

IsemeKamau&Maema

Advocatesforthe2ndRespondent

DRAWN&FILEDBY

1. V.ANyamodi&Co 2. Iseme,Kamau&Maema

Advocates Advocates

HouseNo7 IKMPlace,5thFloor

LowerHillDuplexApartments 5thNgongAvenue,

LowerHillRoad OffBishopRoad

P.O.Box51431-00200 POBox11866-00400

NAIROBI NAIROBI

Email:paul@nyamodi.co.ke Email:info@ikm.co.ke

TOBESERVEDUPON:-

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1. Murumba&Awele

AdvocatesMezz.1,Unit7MirageTowerChiromoRoadNairobi

2. OgettoOtachi&Co.

Advocates.

SifaTowers,7thFloor

LenanaRd/RingRdJunction,Kilimani,

P.O.Box79438-00200

Nairobi

LodgedintheRegistryatNairobionthe24thdayofAugust,2017

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Registrar