Justice Jackton Ojwang has said that among the reasons why he dissented to the ruling annulling the presidential election is that the petitioners had weak grounds as compared to the respondents and did not ‘discharge the evidential burden.’
Justice Ojwang said that the petitioner made arguments only based on generalities and not facts, pointing out that ‘facts do exist.’
“However an abstruse legal argument might be before the court, it must anchor on the facts of the case and this was not the case,” he argued.
“Much of the evidence which the majority opinion adopted was largely not ascertained, apart from standing in contradiction to substantial, more credible evidence,” he said.
“The burden of the petitioner’s case lies on credibility, transparency, and credibility of the results relaying process as the petitioners had agreed with the mode of conduct of the election.”
Ojwang added that the first respondent had declared all transmission systems functional at all points and the petitioner unable to prove the IEBC violated the law.
“According to the first respondent, election materials were ferried on time, voting process was smooth in most areas, presiding officers submitted forms 34A in the presence of the candidate agents, data entered in the KIEMS was accurate and results transmitted through KIEMS were provisional meaning that any difference in final tally and those in the forms, those in the form 34A would be used.”
“The petitioner failed to prove subversion of the law and their case was based on conjecture and speculation.”
Ojwang also pointed out that the Judges ‘entertaining the competitive claims of parties must form an opinion based on clear and objective criteria.’
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