Extracts and judgement in full from the Supreme Court of Kenya ruling, 18 April, 2013, regarding the election petitions between Raila Odinga, the Independent Electoral Boundaries Commission and others, Petition No. 3, 4 and 5:

AGREED ISSUES FOR TRIAL

Prior to the pre-trial conference, the Court drafted a summary of the issues and served this upon the parties for scrutiny and consideration. This was the basis of agreement on issues for trial, which may be summarized as follows:

1. Whether the 3rd and 4^thRespondents were validly elected and declared as President-elect and Deputy President-elect respectively, in the Presidential elections held on the 4^th of March, 2013. [This is the crux of the case].
2. Whether the Presidential election held on March 4th, 2013 was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all relevant  provisions of the law.
3. Whether the rejected votes ought to have been included in determining the final tally of votes in favour of each of the Presidential-election candidates by the 2nd Respondent.
4. What consequential declarations, orders and reliefs this Court should grant, based on the determination of the Petition.

SUMMARY OF JUDGEMENT

[303] We came to the conclusion that, by no means can the conduct of this election be said to have been perfect, even though, quite clearly, the election had been of the greatest interest to the Kenyan people, and they had voluntarily come out into the polling stations, for the purpose of electing the occupant of the Presidential office.

[304] Did the Petitioner clearly and decisively show the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent? It is this broad test that should guide us in this kind of case, in deciding whether we should disturb the outcome of the Presidential election.

[305] We have already considered the foundations of the main grievance: as regards the acquisition of electronic technology for the electoral process; with regard to the partial employment of such technology, before reverting to the manual process; as regards the maintenance of a Voter Register; and in relation to the tallying of votes. Firstly, we have considered the extent to which any breach of the law would have been occasioned in the several areas of operation, and whether such, would disclose reprehensible conduct having the effect of negating the voters’ intent.

[306] Secondly, we have considered the evidence which came by way of depositions, and which was vigorously canvassed by the parties. In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such.

[307] We will, therefore, disallow the Petition, and uphold the Presidential-election results as declared by IEBC on 9^th March, 2013.

JUDGEMENT IN FULL