The judge argued that during the hearings, arguments by petitioners were anchored on bare generalities, not factual evidence.
“However an abstruse legal argument might be before the court, it must anchor on the facts of the case and this was not the case,” he said.
“Much of the evidence which the majority opinion adopted was largely not ascertained, apart from standing in contradiction to substantial, more credible evidence,” he said.
While reading the minority judgement on Wednesday, Ojwang said the first and second respondents stated they did not any have private stakes in the election.
Ojwang said despite a multiplicity of lawsuits against IEBC, they were able to procure election materials as well as have the election on the material day.
“The burden of the petitioners case lies on credibility, transparency, and credibility of the results relaying process as the petitioners had agreed with the mode of conduct of the election.”
The judge said that in evidence presented before the court, according to the first respondent, all election procedures were followed including the exclusion of rejected votes in the final computation.
This is despite the fact that the electoral body declared results without receiving all forms 34A.
“According to the first respondent, election materials were ferried on time, voting process was smooth in most areas, presiding officers submitted forms 34A in the presence of the candidate agents, data entered in the KIEMS was accurate and results transmitted through KIEMS were provisional meaning that any difference in final tally and those in the forms, those in the form 34A would be used.”
Ojwang added that the first respondent assertion was that the transmission system was functional and accurate at all points hence did not warrant any suspicious dealings.
He said the petitioner was unable to prove IEBC flouted the law and the constitution.
“The petitioner failed to prove subversion of the law and their case was based on conjecture and speculation.”
On her side Justice Njoki Ndungu was clear that the right of voters was not respected. The failure of technology could not subvert the will of the people.
While reading her reasons for holding a dissenting opinion justice Njoki Ndung’u says all evidence pointed out to a credible poll before the petitioner challenging the results went to court.While commending on fundamentals of the August 8th election ,The judge says she had an opportunity to examine all forms 34Bs and 34As which were clearly signed by agents of both Uhuru Kenyatta and Raila Odinga as well as report of observers on the entire exercise which gave it a clean bill of health.
”The presence of security features on the form is not statutory on the form.” she said.
The judge however held a different view with the court of appeal which ruled that the results of presidential elections results as confirmed by the returning officer at the poling stations at the constituency level were final.
She says such was supposed to have been given to the Chair of the IEBC who is the main returning officer for the presidential election to ascertain the authenticity of the results before sending the same to the national tallying center.
She has also blamed the majority judges for relying of trivial issues in arriving at the decision to annul the election.More to follow…..