Kindly put calculation of numbers aside. In an election petition, numbers don’t matter much in the determination of an election petition. The Court looks beyond numbers. It considers the entire process to satisfy itself whether an election, especially a Presidential election was conducted in compliance with the Constitution and electoral laws.
In Riala Amolo Odinga vs IEBC &Uhuru Kenyatta 2017 Presidential Petition.
The Supreme Court in that case nullified Presidential election results on the basis that the IEBC failed to conduct elections in strict conformity with the Constitution and relevant electoral laws. The Court did not look at the numbers garnered by any Presidential Candidate. It considered entire process.
There is now a strong precedent from the Supreme Court of Kenya that numbers do not really matter in a Presidential Petition. So, integrity, fairness, transparency of the process is given prominence.
The Supreme Court in that case did not rely on numbers to nullify Presidential results.
Therefore, there may be serious legal issues in Kenyan Presidential election than percentages. I think it is highly probable that Presidential results will be nullified if the Azimio demonstrates and prove that the IEBC conducted the said elections in violation of the constitution and relevant electoral laws.
However, the beautiful aspect of this is that Kenya has moved ahead and made great strides in respect to rule of law and constitutionalism. The independent Judiciary is a guide and protector of a democracy.
In other Jurisdictions, it is different. e.g in Uganda, the Supreme Court in all Presidential petitions has consistently upheld the Presidential results because irregularities could not substantially affect the results.
Hon. Okot Bitek jr ,
LLB (Hons) MUK
Dip. Legal practice LDC
Mp. Kioga county
Vice chairperson Lango parliamentary group.