The United Democratic Alliance (UDA) on Monday evening scored a win after the Court of Appeal suspended a decision directing the electoral body to use manual register concurrently with the electronic register.
A bench of three judges including Fred Ochieng, Luka Kimaru and Paul Mwaniki Gachoka suspended last week’s decision rendered by the High Court, pending the determination of an appeal filed by William Ruto’s UDA party.
The judges stated that the Independent Electoral and Boundaries Commission (IEBC) should use the directions rendered in a case filed by the National Super Alliance (Nasa) in 2017, where the court ordered the Wafula Chebukati-led commission to use the printed register of voters only in instances where the KIEMS kits completely fail, with no possibility of repair or replacement.
“Upon careful consideration of the appeal, we are of the view that (the) appellant has made a case for the grant of the orders of a stay of the entire judgement delivered on August 4, 2022, pending the hearing and determination of the intended appeal,” the judges said.
The judges gave a short ruling owing to the urgency of the matter and the fact that the general election is scheduled for tomorrow August 9, 2022, but said they will state their reasons for the ruling on August 28.
In the petition through lawyer Elias Mutuma, UDA argued that the party is dissatisfied with the decision of the High Court delivered on August 4, directing IEBC to use both the manual and the electronic registers.
Compliance with the High Court decision
The commission had confirmed through Mr Chebukati that it had printed the registers ready for use in compliance with the High Court decision.
UDA secretary general Veronica Maina said the decision is likely to be enforced before the intended appeal is determined rendering the intended case useless.
She said the judgment by Justice Mugure Thande made the use of a manual register the primary mode of identification of voters, which in effect amends the mandatory provisions of Section 44 of the Elections Act that dictates that identification of voters is to be done electronically.
She said the decision made by the Court of Appeal in 2017 stated that biometric identification of a voter is the primary mode of identifying voters at the polling station and where a voter cannot be identified using biometrics, the presiding officer shall use a complementary mechanism of alphanumeric search in the presence of agents.
She said the decision further said the voter should fill out Form 32A before being issued with six ballot papers.
Ms Maina said the presiding officer will resort to the use of a printed register of voters after approval from the Commission upon confirmation that the KIEMS kit has completely failed and that there is no possibility of replacement.