Raila Odinga, Martha Karua plead with top court to give Kenyans a second chance to elect president

Raila, in his rejoinder, further denied claims by IEBC and Dr Ruto that he is a sore loser who has refused to accept the outcome of an election, stating that his quest to challenge the presidential election was to protect the rights of people whose election had been stolen.

He claimed that the case he had taken to the Supreme Court was not something to be glossed over when those in charge of elections had acted with impunity as if they are above the law and taken the polls commission as personal property to achieve ulterior motives.

"What the commission tried to do is to put in place a government not contemplated in the Constitution. Just like in a football match, it does not matter how many goals you score in an offside position because they will not count," said senior counsel James Orengo.

Senior Counsel Pheroze Nowrojee continued Raila's onslaught on IEBC chairman Wafula Chebukati saying they had proved he is not fit to hold the office for violating the Constitution and bungling the presidential election.

According to Nowrojee, Chebukati had admitted that he declared the presidential results without announcing results from 27 constituencies when there was no danger since there was peace at the Bomas of Kenya and a choir which sang throughout the sessions.

Will of the people

"We agree that we need truth on what the chairman and his other members did to bungle the election and announce results which do not reflect the will of the people," said Nowrojee.

He added that they had proved the postponement of election in Kakamega and Mombasa resulted into voter suppression, and that the substance of all other evidence proves the fact that the election was irregular and did not comply with the Constitution.

Senior Counsel Philip Murgor argued that they had proved that original Forms 34A from some polling stations were changed and the results displayed at the IEBC public portal did not reflect the outcome on the ground. Murgor added that there was no way the picture images of the Forms 34A could be converted to PDF copies when the tender for the KIEMS Kits had specifically stated that the documents should be submitted in their original formats.

"The commission is telling us that it was not possible to download, convert and reupload the forms when there are so many software which can easily be downloaded free of charge and used to convert the documents," said Murgor.

He added that their claims that there were foreigners and mercenaries working with IEBC to deny Raila and Karua victory had not been denied since the said foreign national who have been adversely mentioned as having accessed the system had not come out to deny the claims.

Senior counsel and Siaya Governor James Orengo argued that the IEBC and Dr Ruto had not satisfactorily responded to all claims which leave no doubt that their claims of rigging are true.

According to Orengo, Ruto's lawyers labelled their allegations as works of fiction while forgetting the substance for which they are challenging the presidential election.

"We would have hoped that if the electoral commission was so sure that they conducted a free, fair and credible election then they would have brought all the evidence to prove that but they have brought nothing," said Orengo.

He added that the commission conducted the election in an opaque manner that they have even refused to comply with a court order to open their servers for scrutiny.

Credible poll

Orengo submitted that the manner Chebukati run the presidential as a one man show as confirmed by four commissioners who disowned the results is not in conformity with the constitutional requirements for a credible election.

He added that the commission cannot say it did a good job when they have been at loggerheads with each other and that any of their defences cannot be trusted.

"How the IEBC chairman is running the commission is a mystery. Where there is an infringement of the Constitution no matter how small it is must be punished. It does not matter whether someone got 10 million votes when the manner he got the votes is questionable," said Orengo.

The lawyers added that even if results announced by Chebukati were to be true then Ruto did not meet the threshold of 50 per cent plus votes to be declared president-elect based on the calculation of the voter turnout.

Orengo urged the Supreme Court to allow their petition and declare that Ruto was not validly declared president-elect.