REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PRESIDENTIAL ELECTION PETITION NO. 1 OF 2017 H.E RAILA ODINGA……………………………………..……..1ST PETITIONER H.E STEPHEN KALONZO MUSYOKA…………...……….....2ND PETITIONER AND THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION…………………….........1ST RESPONDENT THE CHAIRPERSON OF INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION………..2ND RESPONDENT H.E UHURU KENYATTA……………………………………..3RD RESPONDENT 3RD RESPONDENT'S AFFIDAVIT IN REPLY TO THE AFFIDAVITS OF 1ST PETITIONER AND DR. NYANGASI ODUWO I WINIFRED WACEKE GUCHU, a resident of Nairobi and of Post Office Box Number 38601- 00623, Nairobi make oath and state as follows; 1. I am the Executive Director of Jubilee Party (“JP “). I was the Deputy Chief Presidential Agent for JP’s Presidential team during the recently concluded 2017 general election for purposes of Regulation 57 of the Elections (General) Elections, 2012. I am thus competent to make this affidavit. I now produce a true copy of my appointment letter which is marked “WG 1” 2. I make this affidavit on the basis of matters within my own knowledge and as regards matters of law, on the basis of advice from counsel on record which advice I verily believe to be correct. 3. In the aforesaid elections, Jubilee nominated Uhuru Kenyatta and William Ruto as its Presidential and Deputy Presidential candidates respectively. (“JP candidates”). RESULTS 4. On 11th August 2017, the 2nd Respondent announced that the JP candidates won the Presidential election contest on the basis of the following results, which were arrived at after the 1st and the 2nd Respondent had assured themselves that the results were accurate: 1 NAME VOTES PERCENTAGE JOHN EKURU LONGOGGY 27,311 0.18% AUKOT MOHAMED ABDUBA DIDA 38,093 0.25% SHAKHALAGA KHWA 11,705 0.08% JIRONGO JAPHETH KAVINGA KALUYU 16,482 0.11% UHURU KENYATTA 8,203, 290 54.27% MICHAEL WAINAINA 13,257 0.09% MWAURA 5. JP as a party also won a majority of positions in all the other five elections conducted on the same day. The following is a summary of the results in the 5 other elections for Gubernatorial , Senate, National Assembly, Women Representative and Members of County Assembly: Kenya 2017 Presidential Vote Distribution Presidential Election Votes Uhuru Kenyatta 8,203,290 Raila Odinga 6,762,224 Joseph William Nthiga Nyagah 42,259 Mohamed Abduba Dida 38,093 John Ekuru Longoggy Aukot 27,311 Japheth Kavinga Kaluyu 16,482 Michael Wainaina Mwaura 13,257 Shakhalaga Khwa Jirongo 11,705 2017 Number of Governors by Party Number of Governors per Party Jubilee Party 25 ODM 13 WDM-K 2 Independent 2 FORD-K 2 NARC 1 MCCP 1 KANU 1 0 5 10 15 20 25 30 2 Kenya 2017 Number of Senators by Party Senators JUBILEE PARTY 25 ODM 13 WDM-K 2 KANU 2 ANC 2 PDR 1 FORD KENYA 1 CCU 1 0 5 10 15 20 25 30 Kenya 2017 Number of Woman Representatives by Party Woman Representatives JUBILEE PARTY 25 ODM 11 WDM-K 3 KANU 2 PDR 1 MCCP 1 INDEPENDENT 1 FORD KENYA 1 EFP 1 ANC 1 0 5 10 15 20 25 30 3 Kenya 2017 Number of Members of National Assembly by Party Number of Members of National Assembly by Party JP 140 ODM 61 WDM-K 19 IND 13 ANC 12 KANU 8 FK 5 FORD-KENYA 5 EFP 4 MCCP 3 PDR 3 CCM 2 KNC 2 KPP 2 PDP 2 0DM 1 CCU 1 DP 1 FAP 1 MUUNGANO 1 NAPK 1 ND 1 PNU 1 0 20 40 60 80 100 120 140 160 4 Kenya 2017 Number of Members of County Assemblies by Party Number of MCAs per Party Jubilee Party 582 ODM 338 IND 105 WDM-K 87 FK 51 ANC 47 Kanu 38 PNU 27 MCCP 22 EFP 15 PDR 14 CCM 12 NARC 10 MUUNGANO 10 NARC-K 9 KPP 8 PPOK 7 PDP 6 UDP 5 FAP 5 LPK 4 KADU 4 DP 4 NARC-KENYA 3 KSC 3 SDP 2 PTP 2 PICK 2 PDU 2 NVP 2 ND 2 MGPK 2 KNC 2 FPK 2 DC 2 CCU 2 SAFINA 1 RBK 1 PPK 1 NARC 1 KADU-ASILI 1 DPK 1 DDA 1 AGANO 1 0 100 200 300 400 500 600 700 6. The difference between the votes cast in favour of JP’s candidates and those cast in favour of the Petitioners, at the date the results were declared, is 1,441,066. The said difference is very significant and emphatically demonstrates the resolve of the people of Kenya to exercise their free and sovereign will. 5 7. According to observers of Kenya’s political landscape, voter registration patterns prior to the election and several polls indicated that JP enjoyed significant support in Rift Valley, Upper Eastern region, parts of Nyanza and Western Kenya, North Eastern Kenya, increased support in Coast , Nairobi and in Central Kenya accounting for a potential voter base of 7, 500, 000 while NASA had firm support in parts of Nyanza, parts of Western, parts of Coast and in lower Eastern region, accounting for a potential voter base of 6,000,000. The ultimate results are therefore not surprising. 8. The Petitioners have not presented any or any credible evidence and/or material that would invoke the jurisdiction of this honourable to disturb the sovereign will of the people of Kenya exercised so emphatically on 8th August 2017. CONDUCT OF ELECTION IN CONTEXT OF ARTICLES 81 TO 91 of THE CONSTITUTION OF KENYA 9. I have nevertheless now read the Petition and Supporting Affidavits filed by the Petitioners to challenge the validity of the election held on 8th August 2017and indeed the entire electoral process. I make this affidavit in response and in opposition thereto and in particular the affidavit of Dr. Nyangasi Oduwo. 10. Having perused the Petition and the supporting affidavits filed with it, it is clear to me that the Petition is loosely structured around four (4) broad pillars, all erected on a foundation of quicksand. The said pillars are as follows: i) That the results declared on 11th August 2017 are invalid on account of irregularities and numerical errors the Petitioners allege they have found in Form 34A and Form 34B; ii) That the 2nd Respondent had no legal basis for declaring results while approximately 11,000 Form 34A’s had not been transmitted electronically which the Petitioners contend was the exclusive statutory mode of transmitting results; iii) That the Presidential Election was marred and significantly compromised by intimidation and improper influence or corruption contrary to Articles 81(e) (ii) of the Constitution as read together with the Elections Act and Regulations 3 and 6 of the Electoral Code of Conduct; iv) That the Presidential Election was so badly conducted, administered and managed by the 1st Respondent as to contravene and violate Articles 38, 81 and 86 of the Constitution of Kenya as read together with section 44 of the Elections Act; 11. It is immediately clear to me that the Petitioner has gone to very great lengths to exaggerate facts, peddle outright falsehoods and suppress material facts in a bid to mislead this Honourable Court and thereby obtain an unjust advantage to 6 the prejudice and subversion of the will of the Kenyan people expressed in a free, fair and credible election. 12. I have actively participated in all aspects of the electoral process either directly or through agents of JP. I can unequivocally state that in my view the 1st Respondent and its staff, including the 2nd Respondent, have conducted the entire process with remarkable diligence, efficiency and in full fidelity to the standards established in the Constitution and all the electoral laws. 13. To my knowledge, the electoral process, as with all human endeavours, does encounter problems all over the world but the elections held on 8th August 2017 exceeded the statutory threshold for a credible election. 14. For clarity, I reject all the allegations, both specific and vague, set out in the Petition and in the affidavits filed in support thereof, regarding the misconduct and irregularities attributed to the 1st and 2nd Respondents. 15. The Petitioners dedicate a considerable portion of their Petition to attempting to demonstrate how hopelessly incompetent and inefficient the 1st Respondent is. Nothing could be further from the truth and the Petitioner’s anger at the Respondents must be viewed against the following facts and circumstances; i. In 2013, the Petitioner participated in the Presidential election and was declared the runner up. He rejected the results on the basis, inter alia, that the 1st Respondent had “stolen” the election from him. ii. His claims were rejected by this honourable court in a decision reported as Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR iii. The Petitioner, with the assistance of surrogates affiliated to an umbrella NGO entity known as Africog, including Mr Maina Wachira and Mr Maina Kiai, immediately thereafter embarked on a project to undermine the judicial authority of this honourable court and the confidence Kenyans were developing in their constitutional and statutory institutions by making scathing attacks in local, regional and international media on the court , the 1st Respondent and any other institution or individual who had played any role in the election. iv. The Petitioners also alleged, without any basis, that the election was in fact a military coup. They have repeated the same baseless claims again this year both before and after the elections including filing a court case against the Kenya Defence Forces. v. In the intervening period, the 1st Petitioner has persisted in peddling, at every opportunity and forum, the false and untenable narrative that elections can only be considered free fair and credible in Kenya if he is declared the winner.