They swear in their petition that the IEBC commissioners' split proves Wafula Chebukati was a one-man show. They claimed that the electoral process was opaque and untrustworthy.
"The declaration of the outcome of the presidential result; the public accusations and counter accusations emanating from the commissioners of the first respondent exposed the more critical fact that the electoral process had not been transparent; and the actions of IEBC had been only the actions of the chairperson alone, and were as such, wholly unconstitutional," the case filed on behalf of the two by Paul Mwangi and Company advocates read in part.
The Azimio duo says Chebukati acted in the capacity of the IEBC by declaring results that had not been tallied or verified by the commission. According to them, results from 27 constituencies had not been tallied and verified by the time Chebukati declared the winner.
They have listed Mvita, Matuga, Kilifi North, Bura, Fafi, Wajir North, Eldas, Mandera West, Tigania West, Mbeere North, Ndaragwa, Kapenguria, Kacheliba, Narok North, Narok South, Narok West, Kajiado East, Kanduyi, Nyakach, Rangwe, Ndhiwa, Suba North, Kuria East, Bomachoge, Borabu, Kitutu Chache and West Mugirango.
Raila and Karua argue that if the votes from the 27 constituencies had been counted, the outcome of the presidential election would have been different.
"Immediately before the declaration of the result of the presidential election, four out of the seven commissioners comprising the majority publicly disowned the result declared.
"At the time of declaring the final result of the presidential election, the first respondent had not received, uploaded, and made publicly available for scrutiny on the public IEBC portal, form 34As in the 27 constituencies," court papers say.
At the same time, Raila and Karua criticised Chebukati's behaviour during the winner's announcement. The IEBC chair, they claim, did not state whether the results were provisional or final.
They also aver that before declaring the winner, he failed to share and circulate the final presidential results with the presidential candidates, chief agents, observers, media, and fellow commission members.
Chebukati, according to Raila and Karua, unilaterally removed all checks and balances and destroyed the necessary structures and mechanisms to eliminate electoral malpractices.
They cite the Court of Appeal's decision in the IEBC v. Maina Kiai to argue that the commission should verify the results received at the national tallying centre without interfering with the figures and details of the outcome of the votes received from the constituency tallying centre.
"The petitioners contend that the first respondent's commissioners collapsed Tower of Babel was the final outcome of the following preceding facts that further demonstrate lack of transparency and efficiency which are complained of and which preceded the impugned declaration," Raila and Karua say.
They allege that first, at about 3pm, the public display stopped running the results that were trickling in at the national tallying centre at Bomas on August 13.
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At the time of stoppage, they claim, Raila was ahead with 2.06 million votes, translating to 54.30 per cent and Ruto was second with 1.7 million votes, an equivalent of 45 per cent.
"The first respondent never resumed the public display of results at the national tallying centre and the petitioners' agents and other observers had no way or means of auditing and verifying what was happening at the national tallying centre or the results received and or computed by the first and second respondents."
The two also allege that there are conflicting numbers of the people alleged to have voted. It is said that on August 9, 2022, at about 4pm IEBC stated that an average of 52 percent of registered voters had cast their votes.
The following day, on August 10, at about 1pm, in his first media brief, Chebukati announced that the voter turnout was at 65.4 per cent which had been captured in the electronic voter identification kits. This translated to 14.4 million voters.
According to the Azimio candidates, the number was reduced to 14.21 million voters in the form 34C. "This was absurdly lower and not higher as anticipated," Raila and Karua say, adding that this was an indicator that the results transmission system had been tampered with and compromised.
Court papers read that the commission cannot account for more than 250,000 votes. "The discrepancy between what was written as the total valid vote and the actual computation cannot be dismissed as a simple mistake or an error in light of the totality of the above evidence and the effect of the final outcome," the two continue.
The Azimio team will rely on Dr Edgar Otumba's argument that based on the numbers presented by Chebukati, the 50 per cent plus one vote threshold was not met. Dr Otumba asserts that the numbers indicate that there ought to be a runoff as Ruto had 49.997 per cent while Raila 48.372 per cent.
"Even based on the disparities in the manipulated numbers of the voter turnout, the petitioners state that the ninth respondent (Ruto) did not meet the constitutional threshold of 50 per cent plus one of the valid cast votes," Raila and Karua say.
At the same time, they aver that form 34 C reveals significant gaps between voter turnout and declared results, indicating that the UDA team lacked the necessary numbers.
They continue: "Therefore the result declared for the ninth respondent is further inaccurate, illegal, invalid, null and void."
Raila and Karua also want the court to rule on whether Chebukati's actions during the election administration were impartial, neutral, efficient, accurate, and accountable.
They also want the court to decide whether or not the rejected votes should be counted in the final tally.
Supreme Court is also being asked to decide whether Chebukati committed an electoral offence and whether he acted ethically and professionally.
The Azimio team has until close of business today to serve IEBC, Chebukati, his deputy Juliana Cherera, commissioners Boya Molu, Prof. Abdi Yakub Guliye, Irene Masiit, Justus Nyangaya, Francis Wanderi and Ruto.
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