The Independent Electoral and Boundaries Commission (IEBC) is challenging the recent High Court decision that results of the presidential race should be declared exclusively by its 290 constituency returning officers.
In a memorandum prepared by lawyer Wambua Kilonzo, the national election agency says the IEBC Chairman is specially vested with the responsibility of overseeing the presidential poll and to declare the outcome after tallying and verifying all the results from across the country.
The returning officers are only required to announced the results of the presidential election at the constituency level and transmit the results to the national tallying centre in Nairobi where the IEBC chairman takes charge of the election results and declares the winner, Wambua has argued in the memorandum filed in the Court of Appeal.
IEBC is aggrieved by the April 7 decision by Justices Aggrey Muchelule, Weldon Koriri and Enock Chacha-Mwita that results announced by returning officers at constituency level are final and not subject to confirmation. The court had held that the caveat presidential election results at the constituency level are provisional and must be re-evaluated by the IEBC headquarters in Nairobi offends the Constitution since any complainant is at liberty mount a challenge in the High Court through election petitions.
The three-Judge bench had ruled that Sections 39 (2) and (3) of the Elections (General Regulations) Act 2012 were in conflict with Articles 86, 87 and 138 of the Constitution by purporting to exclude presidential poll results from those of Governors, Senators, Members of Parliament and Members of County Assemblies.
They said the IEBC leadership had no power to confirm, approve or alter the outcome of the presidential vote after the returning officers at the constituency level had tallied the ballots, declared the results and issued certificates for onward transmission to the national elections agency.