Omtatah said IEBC had conflicting figures on the number of people who voted. He stated those indicated to have voted by the Kiems kits were 14,239,862 while those who allegedly voted through manual register were 86,889.
At the same time, he said, the voter turnout out indicated by the commission was 14,326,751 while rejected votes were 113,614. Total valid votes were said to be 14,213,137.
Okiya, who appeared alongside Prof Tom Ojienda, also argued that when IEBC chairman Wafula Chebukati was asked about the voter turnout, he indicated that 65 per cent of registered voters cast their votes. This he says, amounts to 14,466,799 votes.
According to him, if the numbers were calculated, then president-elect William Ruto and Azimio presidential candidate Raila Odinga did not achieve 50 per cent plus one vote. At the same time, lawyer Willis Otieno's sweat flowed as he argued that Chebukati played 'pata potea' with the votes cast by Kenyans on August 9.
Mr Otieno, who is the lawyer representing activist Khelef Khalifa, George Osewe, Ruth Mumbi and Grace Kamau in the presidential election petition filed to challenge Chebukati's declaration of Ruto as the president-elect, argued that the chair's conduct amounted to the juvenile game of randomly guessing the best 'Pinki pinki ponki paka mielo disco kendo.'
According to the lawyer, the country went to the polls with 481,711 persons with duplicate names in the Kiems kits, 638,814 persons registered with null IDs and there were generic users who cannot be attributed to anyone.
At the same time, according to him, a report by KPMG on the IEBC voter register also showed that there were 14 non-returning officers dubbed 'Embakasi South clerks' who were granted access to the commission's system.
"The universe of the election had been compromised from the beginning," said Otieno. Lawyer Willis Otieno. [Collins Kweyu, Standard]
According to him, an election has four processes. He stated that the first level is at the polling station where the returning officer will declare results and send the same to the second level which is the constituency.
The third level, he says, is at the national tallying center where the commission verifies constituencies' results and collates them. The fourth stage is that of the chairperson declaring the result of the commission.
"The chairperson cannot move from tier four and go to tier three and purport to verify and tally the votes and make a declaration on each tier. Under Article 81, elections must be conducted by an independent vote. An individual, not a body conducted the presidential elections whose results we are disputing. If it were a body, I would not have been served with the documents from commissioners confirming they did not participate in the verification. Telling of the count a majority of the commissioners IEBC in their affidavits, the majority have confirmed they did not tally and verify," he argued.
A seven-judge bench composed of Chief Justice Martha Koome, her deputy Philomena Mwilu and justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaack Lenaola and William Ouko heard that where the Constitution desired a function to be performed by an individual it established an independent office such as the office of Auditor General the office of Comptroller of Budget.
"The office of election management body is at commission, it is not established as a chief elections officer," argued Otieno adding that Chebukati admitted that he operated solo.
During the first day of the hearing of the petitions, Youth Advocacy Africa lawyer Paul Nyamodi said Chebukati admitted he gave all other five commissioners other jobs at Bomas of Kenya which were not related to tallying.
Stay informed. Subscribe to our newsletter
Subscribe to our newsletter and stay updated on the latest developments and special
Pick your favourite topics below for a tailor made homepage just for you