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SUPREME COURT OF KENYA Petition No.5of2013 Full Judgement

SUPREME COURT OF KENYA Petition No.5of2013 Full Judgement

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Published by Benedict B-dj
Petition No 5 of 2013 challenging IEBC'S declaration of Uhuru Kenyatta as president-elect
Petition No 5 of 2013 challenging IEBC'S declaration of Uhuru Kenyatta as president-elect

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Published by: Benedict B-dj on Apr 17, 2013
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04/17/2013

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1
REPUBLIC OF KENYA 
IN THE SUPREME COURT OF KENYA AT NAIROBI
(Coram: W.M. Mutunga, Chief Justice and President of the Supreme Court; P.K. Tunoi; M.K. Ibrahim; J.B. Ojwang; S.C. Wanjala; N.S. Ndungu, SCJJ.)
PETITION NO. 5 OF 2013
-BETWEEN-
RAILA ODINGA ….……………………….…………………..………..PETITIONER  
-AND-
1. THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION2. AHMED ISSACK HASSAN ….……...….RESPONDENTS3. UHURU KENYATTA 4. WILLIAM SAMOEI RUTO AS CONSOLIDATED WITH PETITION NO. 3 OF 2013
-BETWEEN-
1. MOSES KIARIE KURIA 2.DENIS NJUE ITUMBI ……………....…..PETITIONERS3. FLORENCE JEMATIAH SERGON
-AND-
1. AHMED ISSACK HASSAN…….…….…….RESPONDENTS2. THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND AS CONSOLIDATED WITH PETITION NO. 4 OF 2013
-BETWEEN-
1. GLADWELL WATHONI OTIENO2. ZAHID RAJAN ..……………………..PETITIONERS
 
2
-AND-
1. AHMED ISSACK HASSAN2. THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION …….……….….RESPONDENTS3. UHURU KENYATTA 4. WILLIAM SAMOEI RUTO
JUDGMENT
 A.
 
THE PRESIDENTIAL ELECTION OF 4
TH
MARCH, 2013:INTRODUCTION
[1] On the 4
th
of March, 2013, Kenya held its first General Election since thepromulgation of the new Constitution on 27
th
August 2010. The Constitution was a culmination of the efforts of the Kenyan people to bring about a moreprogressive governance set-up. Kenyans affirmed the new Constitution as thesupreme law of the Republic, which binds all persons and all State organs.[2] All powers to be exercised in public functions, therefore, must flow fromthe Constitution. Indeed, judicial authority, under Article 159 (1) of theConstitution, is derived from the people and vests in, and shall be exercised by the courts and tribunals established under this Constitution. Additionally,national values and principles of governance, as set out in Article 10 of theConstitution, underpin the conduct of governance in every respect.[3] The Independent Electoral and Boundaries Commission (IEBC) wascreated by Article 88 of the Constitution, for the management of the country’selectoral processes. It is conferred with the responsibility for conducting free,fair and transparent elections.
 
3
[4] The elections of 4
th
March, 2013 were the first in Kenya to attempt to useelectronic facilitation. The IEBC, at various stages of the election, deployed thefollowing technologies: (i) Biometric Voter Registration (BVR) during voterregistration; (ii) Electronic Voter Identification (EVID) on polling day; and(iii) Results Transmission System (RTS) during tallying.[5] On 19
th
November, 2012, the IEBC began a voter registration exercise, which culminated in approximately 14 million voters being registered. On 4
th
 March, 2013 voters went to the polls in significant numbers. A record 86% of registered voters were reported to have participated in the General Elections. After the polls officially closed on that day, the IEBC began the process of votetallying, and the results were then broadcast to the public.
B.
 
DECLARATION OF RESULTS, AND THE ENSUING PETITIONS
[6] On 9
th
March, 2013, five days after the General Elections were held, theChairman of the IEBC, Mr. Issack Hassan (second Respondent), announcedthat Mr. Uhuru Kenyatta had received 6,173,433 votes out of a total of 12,338,667 (50.07% of all the votes cast), while Mr. Raila Odinga (thepetitioner) had received 5,340,546 votes (43.31% of the votes cast). Pursuantto Article 138(4) of the Constitution, Mr. Hassan declared Mr. UhuruKenyatta, the President-elect.[7] Subsequent to the announcement, three petitions challenging the resultsof the Presidential elections were filed at the Supreme Court.
(i)
 
Petition No. 3 of 2013
[8] On 14
th
March 2013, Petitioners Moses Kiarie Kuria, Denis Njue Itumbiand Flowrence Jematiah Sergon filed a petition against the IEBC as the 1
st
 

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