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Court throws out Nasa’s manual backup appeal

The Court of Appeal on Friday dismissed a case opposing the use of manual backup in the August 8 elections, in case the electronic system fails.

The judges said they see no reason to set aside the decision of the High Court, that dismissed the case by National Super Alliance (Nasa).

Nasa has opposed plans by the Independent Electoral and Boundaries Commission (IEBC) to use a register, generated from the voter electronic system, to identify voters in case the system fails on polling day.

According to Nasa’s lawyer Paul Mwangi, the introduction of manual backup is a plan to rig the elections.

“One of the dangers of the manual system is that it has no inbuilt mechanism to stop fraud. It is open to manipulation,” Mr Mwangi said.


He urged the judges to rule that the Tuesday elections should be exclusively electronic, to lock out anyone who might conspire to rig the polls.

His colleague Prof Ben Sihanya agreed that technology will always fail, but Regulations 69 and 83 are not complementary system Parliament anticipated.

IEBC and Jubilee have questioned why Nasa had to wait until the last minute to challenge the regulations yet they were published in February.

Through Paul Muite, IEBC argued before the appellate court that the regulations were subjected to public participation when Parliament held joint committee sittings late last year and in early 2017.

Attorney General Githu Muigai urged the Judges to dismiss the case saying any intervention by the court at this stage, will be ‘imprudent”.


Prof Muigai said IEBC has put in place a complementary mechanism, as required by the Section 44(a) of the Elections.

Nasa moved to court seeking to compel IEBC to use electronic system to identify voters’ and transmit results in the forthcoming general election.

The opposition argued that IEBC has failed to put in place mechanism to support the establishment of a system to complement the electronic system.

But a bench of three judges dismissed the case saying it would not be feasible to declare that the elections be exclusively electronic.

The Judges said the impact in case the exclusive electronic system fails, would throw the entire election into jeopardy and imperil the country’s democracy.

But Nasa, not satisfied with the outcome, moved to the Court of Appeal.