While delivering the unanimous judgment on September 5, 2022, Chief Justice and President of the Supreme Court Martha Koome used phrases such as ‘hot air’, ‘wild goose chase’ and others in reference to evidence presented by the petitioners.
During the pre-trial conference, the Chief Justice read out the areas that the seven-judge Supreme Court bench was to consider; classified as nine (9) issues.
The bench gave its ruling on issue number three, ‘Whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and Forms 34A received at the National Tallying Centre and Forms 34A issued to the Agents at the Polling Stations’.
Julie Soweto, the lawyer representing Raila Odinga and Martha Karua in the presidential petition, had argued there were inconsistencies in the results entered in forms 34A, 34B and 34C.
Soweto, during her submission at the Supreme Court, said the affidavit of Arnold Oginga highlighted how results from the three different forms 34 had differences totaling 180,000 votes.
“Forms 34A and the results therein ought to be the same as those in forms 34B and 34C. Arnold Oginga, in his affidavit, finds that there is a discrepancy in the results to the extent of 180,000 votes,” she said.
The lawyer said owing to the “small margin” that Ruto was declared the winner of the presidential race, the 180,000 votes discrepancy could tilt the election outcome.
Ruto got 7.18 million (50.49 per cent) to be declared the president-elect, with Odinga coming second with 6.94 (48.85 per cent) of the votes.
Soweto also questioned why in several polling stations, especially those in Central Kenya and Rift Valley, more voters cast their ballots for the president than other elective seat candidates.
The IEBC had, in their replying affidavit, said stray votes, violence and postponed elections in eight areas resulted in higher votes cast for president than some other seats.
Soweto said the argument that stray votes contributed to a higher number of votes for presidency than other elective seats wasn’t convincing.
However, the judges took issue with her submissions in the 133-page long consolidated judgment.
“The Form 34A for Gacharaigu Primary School which was sensationally presented by Julie Soweto, Advocate, to show that one, Jose Camargo, accessed the RTS and interfered with the result contained therein turned out to be no more than hot air and we were taken on a wild goose chase that yielded nothing of probative value,” reads the judgment.