The National Super Alliance wants the August 8 election postponed in the event that the High Court finds that the electoral commission has not put in place a backup to the electronic system.
During the hearing on Monday, the opposition alliance, through its lawyer Paul Mwangi, submitted that the Independent Electoral and Boundaries Commission (IEBC) has powers under section 55(b) of the Election Act to postpone the date of the election until the system is in place.
"In the event you agree with us, IEBC has the powers to postpone the election for hours or even a day," the lawyer told justices George Kimondo, Hedwig Ong'undi, and Alfred Mabeya.
Section 55(b) of the amended election law reads that the commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county, or ward for such period as it may consider necessary where there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date.
The section also states that IEBC can shift the date when it is impossible to conduct the elections as a result of a natural disaster or other emergencies and there has been occurrence of an electoral malpractice of such nature and gravity as to make it impossible for an election to proceed.
The Opposition, which was also represented by lawyers James Orengo and Ben Sihanya, says that the current system does not have a backup system, as contemplated by the National Assembly.
NASA submitted that the only way the country can achieve free and fair elections is by having a purely electronic system in the identification process and relaying of results and that IEBC ought to have put up an electronic backup system 60 days to polling day.
"IEBC has not put up systems to deal with the event if the system fails. They have not addressed this court on how they are to tackle any failure to the electronic system," the judges heard.
IEBC and the Jubilee Party opposed the case.
IEBC, in its reply by lawyers Patrick Lumumba and Paul Nyamodi, argued that everything was in place and that it had a system that would accommodate any failure by the electronic system.
The Jubilee Party, through lawyers Ahmednasir Abdullahi and Tom Macharia, argued that a fusion of a purely electronic system in the election process would be intimidating to those who have no technological knowhow.
The judges heard that in the event an old or a disabled person's name is not in the system, the only way to ensure they vote is by going back to the manual system.
Jubilee argued that having an electronic system without a manual backup was a way of voter suppression.
It also emerged that there are two other cases filed before the High Court in opposition to the manual backup system.
The cases were separately filed by Bado Mapambano Trust and activists Maina Kiai and Khelef Khalifa.