1)The courts should not cause Jurisprudential crisis through their findings
2) The voter bears the right of franchise
3) Elections are ‘RIGHTS- centric’ not ‘FORM-centric’
4) You have the Various verifying agents
c) Candidate agents -Senators, Governors
e) Observers – Their reports are filed with commission so they have a formal status, they found the election to be free and fair
5) It is insufficient for the court to say it had a doubt, the court must be satisfied by evidence before it. It must not be speculative
6) Regulation 68 provides the ballot paper does not provide for security features on ballot papers. (It provides it shall have name and photo of candidate, be capable to be folded, party symbol) – that does not apply for the forms
7) An election court must satisfy that evidence is real and not imagined in order to nullify an election
8) The ballots exist – People speak through the ballot. if Majority were in doubt that should have been the option
9) “The ballots are alive and available when you have to overturn a decision do not result to forensic guesses – why avoid the obvious and settle for the risky”
10) Voters are identified at the polling station, the votes at the polling station, the Count happens at the polling station, to verify the voice of the voter you must check the vote as cast – 11) Transmission of forms cannot be the basis for nullifying a Presidential election
12 ) Transmission was intended to cure the transportation of forms to Nairobi by all 290 Returning Officers – that was a key issue in the Maina Kiai case
13) IEBC argued in COA that the case by Maina Kiai would extinguish the power of IEBC to amend or alter the result
14) COA ruled, “Polling Station is the true Locus for the free expression of the voters will..”
15) COA – ruled that the role of the chairman of IEBC was only to tally results from constituencies, declare and forward declaration to incumbent President and CJ
16) Did IEBC obey the Maina Kiai decision – in my view that was demonstrated in court, I am satisfied that IEBC adhered to the guidelines set by the Maina Kiai decision despite the decision coming 35 days to the elections.
17 . What is the place of Maina Kiai decision in future elections? – I disagree with Maina Kiai decision since It endorses another level of tallying at constituency and it incapacitates the iEBC chair. IEBC Chair is the returning officer of the Presidential Election.
18 . You cannot find the National threshold at the constituency. only IEBC Chair has the capacity to verify and declare a Presidential election, not the Constituency because there are other points to verify before declaring a winner of the Presidential election – for instance 25 % requirement in counties, 50+1
19 . The Constitution must be interpreted in context and must be holistic
20 . Our electoral system is MANUAL – You pick a ballot manually, you tick manually, you insert it in the box and count manually – our system is not like India or USA where it is clearly electronic. we have a system that needs clarity via legislation.
21 . The IT experts by the petitioners fail the test of Expert testimony as provided for in the Evidence Act.
22 . Whoever alleges, MUST prove
23 . The burden of proof in Election cases – the Evidential burden is borne by petitioners at the onset, however, the respondents bear the evidential burden of proof in rebutting the allegations.
24 . The Petitioner must prove that the election was NOT conducted according to the law and that affected the results of the election.
25 . However, the Legal burden lies on the Petitioner
26 . A candidate or her agent cannot abscond duty from the polling station then ask the court to overturn the election
27 . IDP payments were approved by Parliament and were within Gvt workplace and therefore nothing to do with elections
28 . I have analyzed affidavit evidence of the petitioners and respondents
29 . Orders on accèss to Information – The majority call it orders to access – In interpreting orders the court reasons must be read in whole so as to implement. For the avoidance of doubt – This court did NOT give orders for access to SERVERS
30 . Failure to have security features on the form is not FATAL
31 . The Majority had an opportunity to check the forms as deposited in the court like I did, but they did NOT
32 . When you compare Registrar report and the certified forms brought by IEBC to court the majority finding falls, I checked and that is what is called verification
33 . The alleged irregularities and illegalities must have a nexus
34 . Which circumstances are different between Raila 2013 and Raila 2017 to persuade the Majority to depart? I do not see any
35 . Parliament must clarify article 83 of the act –
36 . The Supreme Court decision to annul a presidential election does not take over rulings in lower courts
37 . The People speak through the Ballot
38 . The alleged irregularities should have checked the certified forms as provided by IEBC
39 . It is unfortunate that the majority has decided to take a decision to disfranchise the people, by making a decision based on design of forms as opposed to the decision of the electorate
40 . Judiciary must operate within its power and must prevent abuse of power