This animal called provisional results has led to ballooning of final tally Orengo

The Court of Appeal will on June 23, 2017 rule on the appeal filed by the Independent Electoral and Boundaries Commission (IEBC) contesting the finality of presidential election results announced and declared at the Constituency level.

This comes after IEBC, government and the opposition National Super Alliance (NASA) lawyers made final submissions on Wednesday, June 7, 2017 with the poll body and the government pushing to have the High Court ruling declaring presidential election results as announced at the Constituency level final.

Making his final submissions, NASA lawyer, James Orengo, argued that the IEBC boss has no legal powers to alter presidential results in a General Election after they are announced in the constituency.

Orengo argued that in case the IEBC boss is allowed to alter the presidential election results as received from the constituency level, then he should sign a different form.

“If there was an intervening action by IEBC between the announcement of the results at the constituency level and the level of the IEBC chairman, then another form should be signed. No such form exists,” argued Orengo.

He further argued that the IEBC chairman has no power whatsoever to alter the presidential election results.

“It is not true that Article 138 (3)(c) of the Constitution on the presidential election is self-contained as submitted by the IEBC legal team.”

He further argued that the function of the IEBC after the presidential election has been clearly outlined in Article 138 of the Constitution.

Article 138(3)(c) of the Constitution states: “After counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.”

Orengo argued that provisional results have previously led to ballooning of results and asked the court to dismiss the IEBC appeal.

In response, IEBC lawyers, Wambua Kilonzo and Paul Nyamodi, defended the commission position that Chairman Wafula Chebukati should be the one to make the final decision on presidential results.

IEBC and the government, through Attorney General Githu Muigai, argued that the commission chair is the presidential elections returning officer.

On Tuesday, June 6, the state through Attorney General Githu Muigai, asked the Court of Appeal to recant the ruling of the High Court arguing that the Judges in a court of law do not have powers to amend the constitution at any given point and dismissed NASA’s claims of not trusting the electoral agency because they fought for a new team to come – a decision which the government bowed to by disbanding the Isaac Hassan-led commission.

The High Court of Kenya, through Justices Weldon Korir, Aggrey Muchelule and Chacha Mwita on April 4, 2017 ruled that presidential election results announced at the polling station and constituency levels will be final, a ruling the IEBC has since contested.