Court throws out petition to stop vote tallying

A bid to stop manual tallying of presidential results flopped after the High Court ruled that it has no jurisdiction to hear any petition touching on the top seat election.

Judges Isaac Lenaola, Weldon Korir and David Majanja on Friday dismissed an urgent application by African Centre for Open Governance (Africog), saying although the activists had raised serious issues, the High Court could not assume the jurisdiction bestowed upon the Supreme Court.

“Issues raised are not idle but should be pursued in the right forum. We have no reason to find we have jurisdiction to handle the matter since presidential election is not pegged on one single event but is a process,” ruled the judges.

Immediately after the ruling, the civil group through lawyer Harun Ndubi said it would take the court’s direction and file the petition at the Supreme Court.

In the petition, claiming the electoral commission was violating provisions of the Constitution, which requires it to conduct a transparent vote tallying.

Mr Ndubi argued that the failure of the commission to transmit the results electronically had compromised the credibility of the process.

“IEBC is using a manual system to tally the votes contrary to the law and ignoring the fact that voter turnout in many constituencies is recorded as being higher than those registered,” he said.

The three judges first set out to determine whether they had jurisdiction over the dispute after the activists claimed High Court could determine the case.

Mr Ndubi argued that the court indeed had the jurisdiction to stop the tallying since their concern was not to challenge the outcome, but the need to follow the laid down procedure.

“This is not an election petition challenging the outcome of results but a request brought under Article 35 of the Constitution regarding the failure of the commission to tally and verify the votes at the centres,” he said.

The commission through lawyer Paul Nyamodi opposed the application, saying any issue touching on the presidential election is a preserve of the Supreme Court.

Mr Nyamodi argued that although the application was not a petition challenging the results outcome, it was misplaced since it questioned the process of presidential elections.

“Presidential election is not an event but a process that deals with all issues arising from nominations. The judges must down their tools and dismiss the application or refer it to the proper court,” he said.

The civil group argued in the application that the commission had failed in its duty by refusing to account for the discrepancy in rejected votes.

It sought a court order directing IEBC to start tallying presidential results afresh, and that it revives and use the electronic tallying system.

In the event that the commission would have announced the results, the activists wanted a restraining order stopping IEBC from gazetting the official results.

They claimed that the manual tallying had been shrouded in secrecy after party agents were thrown out and that unless the court intervened, the results would not be fair and transparent.