Deputy Chief Justice Philomena Mwilu on Monday stirred
confusion at the apex court after denying a ruling she made in the presidential
petition that saw President Uhuru Kenyatta’s win nullified.
Mwilu made the perplexing remarks when IEBC Chairman Wafula
Chebukati moved to the Supreme Court seeking clarification on a ruling the
judges made.
Chebukati, who was being represented by Senior Counsel Paul
Muite, moved to the court to know if he has powers to correct errors and
amend Forms 34A and B.
According to Maina Kiai’s case, the results at the polling
station were declared final but in the presidential petition, Chebukati was
faulted for not verifying the results received at the National Tallying Centre.
Hence the electoral body chair mentioned that he did not
understand what he ought to do in case there were discrepancies in Forms 34A
and B received at the National Tallying Centre during the fresh presidential
poll.
However, Judge Mwilu told Muite that she does not recall
ruling that the Chair should verify the forms.
"Did we say, touch or move a coma, change figures? Did we say that in our judgment? Where? I don't remember saying that and I know I participated in that judgment," Mwilu was quoted by the Star.
The deputy CJ noted that she does not understand what
clarification Chebukati was seeking.
"Where the problem is what is it that we are required
to clarify?" she posed.
In a rejoinder, Muite stated: “We are seeking a
clarification on how the presidential returning officer should go about the
function of verifying the results before announcing the winner."
At the same time Chief Justice David Maraga directed Mr
Muite to to read Section 39( 1 ) (c) of the Elections Act which stipulates:"For
purposes of a presidential election the Commission shall electronically
transmit, in the prescribed form, the tabulated results of an election for the
President from a polling station to the constituency tallying centre and to the
national tallying centre".
A spot check by Pulse Live Kenya into the majority
ruling that nullified the presidential results established that the four judges
ruled that the IEBC boss failed to verify the forms.
“Regulation 87(1)(b) requires the Constituency returning
officer to deliver to the National Tallying Centre all the Forms 34A from the
respective polling stations and the summary collation forms. Regulation
87(3)(a) goes on to provide that, upon the receipt of Form 34A from the Constituency
returning officer, the Chairperson of the Commission shall verify the results
against Forms 34A and 34B received from the Constituency returning
officer,” the ruling read in part.
