Kamau went ahead to argue that the only person who ought to verify, tally and declare the winner is Chebukati and not the commissioners at a plenary. He denied that the IEBC chairman appointed himself as a national returning officer.
The senior lawyer added that in the Maina Kiai case against IEBC and the 2017 presidential election petition between Raila Odinga and President Uhuru Kenyatta, the Court of Appeal and the Supreme Court found that Chebukati is the national returning officer for the presidential election.
"It is clear from the above cases that the duty of verification is exercised by the presiding officer at the polling station, the returning officer at the constituency level, and the chairperson at the national tallying centre. The chairperson is however assisted by the commission - commissioners, agents, and officers of IEBC in conducting the verification exercise at the national tallying centre owing to the extensiveness of the process and the strict timeline of seven days for the announcement of the presidential election results," argued Kamau.
He said results at the polling station are final and cannot be altered. The court heard that where IEBC found that there were discrepancies, the commission noted the same and submitted the report to the Supreme Court.
At the same time, he said, the commission's role after the results are sent from the polling stations is to accurately tally all the results as received from the 290 constituencies without adding or subtracting what had been declared.
Supreme Court judges - Martha Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaack Lenaola, and William Ouko heard that the four commissioners who disowned Chebukati's verdict had tried to moderate the results.
"In attempting to moderate or otherwise influence the results declared by the chairperson, the four commissioners were purporting to unlawfully establish a government otherwise than in compliance with the Constitution in contravention of Article 3(2)," he argued. Kamau also explained how the commission arrived at William Ruto being the winner of the contest. According to him, the votes were counted at the polling stations in the presence of the candidates' agents and representatives.
Immediately after, he said, form 34A was filed by the presiding officers in the presence of the candidates' agents and scanned. It is then transmitted to the constituency and the national tallying center. Thereafter the same forms are tallied again in the presence of the candidates' agents. At the national tallying center, the hard copies are verified alongside what is in the commission's public portal and copies of the forms 34A are also given to the agents.
IEBC lawyer Eric Gumbo. [Samson Wire, Standard]
Meanwhile, Gumbo said the logs indicating that specific people were used to interfere with the results were erroneous.
According to him, the logs that were presented by commissioner Justus Nyang'aya do not speak anything illegal. Those, he said, speak to the ordinary logs that run the systems of the IEBC on day to day basis.
"We have heard allegations. Abdidahir Maalim was one of the returning officers duly gazetted and then he had access to transmit form 34B in the constituency. All those people who were named had been authorised," argued Gumbo.
On Gaedino Omar, he argued that the contract between Smartmatic Limited and IEBC was for the supply and maintenance of the system. He added that it had been agreed that they had to bring the personnel to ensure the smooth running of the election.
Before the election, the court heard they were logged out and none of them were in the system.
Mahat Somane also took the podium. He stated that the numbers relied on in the petitions were erroneous. According to him, the allegation that Ruto did not attain 50 per cent plus one relies on the total registered voters. According to him, the mathematical calculation is wrong. Instead, he said, IEBC based its declaration on the voter turnout for the day.
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