Independent Electoral and Boundaries Commission (IEBC) lawyer George Murugu responded to questions raised by the seven-judge bench regarding stray ballots.
Speaking on Friday, September 2, Murugu argued that the election laws stipulate that unmarked ballot paper is considered null and void, hence, it is not tallied.
"A voter shall be provided with ballot papers for all in the multiple elections he is expected to cast his vote in respect to all the elective post.
"The law declares that it is an offence to knowingly fail to place a ballot paper issued to him inside a ballot box. A marked ballot paper is treated as rejected and is void and shall not be counted."
Lawyer Mahat Somane dismissed allegations that some voters walked into the polling station and voted for the president alone. He explained that the integrity of the ballot election process prohibits such action.
Chebukati's Gazettement
On whether Chebukati gazetted himself, as a national agent or returning officer, Murugu explained that the Elections Act places an obligation upon the chairperson of the commission to declare results.
"The gazettement of was not for purposes of Article 138 C but specifically for Article 138 (10) to fulfil that role."
Article 138 10 states that the chairperson within seven days after the presidential election, shall declare the result of the election and deliver a written notification of the result to the Chief Justice and the incumbent President.
"The gazette Notice is purposely to tell Kenyans that the Constitution has rested powers upon this office to declare that result. That gazette notice should not be read to mean the chairperson had gone rogue," he explained.
Why Chebukati Did Not Announce Results From 27 Constituencies
Murugu further explained that the commissioners were suffering arrests and abductions during the tallying.
"In his (Chebukat) mind, it was prudent to complete the exercise and the results were to be declared as it had been announced that very morning," he defended Chebukati.
"The 27 constituencies had been tallied and had undergone the verification process and were ready for the announcement by commissioner Abdi Guliye."
Checks on Chebukati and His Powers
Justice Njoki Ndung'u had questioned why chairperson Wafula Chebukati assigned menial duties to other commissioners.
She asked IEBC to explain why Chebukati wielded so much power, rendering the rest of the commission almost powerless.
Addressing the question, lawyer Murugu explained that Article 138 3 (c) gives the Commission a joint role in announcing the results.
The article states that after counting the votes in the polling stations, the IEBC shall tally and verify the count and declare the result.
"There is no room for the chair to act as a lone ranger," he explained.
1.6 Million Votes Transmitted After Polling Stations Closed
Justice Ouko had referred to Okiya Omtatah's petition, which stated that 1.6 million votes continued streaming after the closure of the voting process on Tuesday, August 9.
Responding to the claims, Somane dismissed the claims explaining that KIEMS Kits continued transmitting results after the voting exercise ended.
"Omtatah says 1.6 million people curiously voted the polls closed on Tuesday, August 9. This is a faulty analysis. You really have to understand how the KIEMS kits work. When you open the polling station, the kits sends a message.
"People pass through it and send automatic returns. It pins to the nearest network and sends automatic returns. If it is not able to get the network, it will keep that information for the next two hours. So that is how the number changes," he explained.
He added that the votes Okiya Omtatah referred to were likely transmitted from kits deployed in areas with poor network coverage.
Votes Identified Manually
Lawyer Somane stated that 86,889 voters were identified manually in 114,917 polling stations.
