Bench Bulletin Issue 38

Issue 38,
July - September 2017
CJ’s Speech
Statement By Hon. David K. Maraga, EGH, Chief Justice of The
Republic of Kenya and President of the Supreme Court, on
The Judiciary’s Preparedness For Elections Dispute Resolution,
August 3, 2017 | Pg 02
Feature Case
Odinga & another v Independent Electoral and Boundaries
Commission & 2 others [2017] eKLR. | Pg 08
International Jurisprudence
Presidential Elections Petitions resulting in repeat polls around
the World | Pg 55
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CONTENTS
1. Editors Note 1
2. CJ’s Message 2
3. What they Said 6
4. Feature case 8
5. Caseback 74
6. International Jurisprudence 75
7. Legal Supplements 82
8. Legislative updates 85
Editorial Team:
Editor /CEO Contributors
| Long’et Terer | | Nelson Tunoi | Emma Kinya | Lisper Njeru |
| Teddy Musiga | Beryl Ikamari | Christian Ateka |

| Ruth Ndiko | Thomas Muchoki | Humphrey Khamala |
Deputy CEO (Ag) | Patricia Nasumba | Moses Wanjala | Musa Okumu |
| Monica Achode |
Head of Law Reporting & Publishing, Design and Layout

Council Secretary (Ag) | Catherine Moni | Josephine Mutie |
| Cornelius W. Lupao | | Cicilian Mburunga | Robert Basweti |

Senior Law Reporters Proofreaders
| Andrew Halonyere | Linda Awuor | | Phoebe Juma | Innocent Ngulu |
| Njeri Githang’a Kamau |
This Work by The National Council for Law Reporting (Kenya Law)
is licensed under a Creative Commons Attribution-ShareAlike 4.0
International (CC BY-SA 4.0).
KENYA LAW REPORTS
2014 Volume 1
KLR 2014
This Law Report contains precedent setting judicial opinions delivered in the Year 2014 by the Supreme Court, Court
of Appeal, High Court, Environment and Land Court and the Employment and Labour Relations Court.
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National Council for Law Reporting (Kenya Law) - A service state corporation in the Judiciary
Members of the Council
for Kenya Law
The Hon. Justice David K. Maraga, EGH

Chief Justice and President, Supreme Court of Kenya
Chairman
The Hon Lady Justice F Sichale
Judge of the Court of Appeal of Kenya Mr Silvester Migwi, Government Printer,
Government Press
The Hon Justice Anthony Ndung’u (Represented by Ms Eva N. Githinji, Senior Printer
Judge of the High Court of Kenya
Ms Janet Kimeu,
Prof Githu Muigai, SC
Advocate, Law Society of Kenya
Attorney General
Prof Kiarie Mwaura Mr Michael Muchemi,

Dean, School of Law, University of Nairobi Advocate, Law Society of Kenya
Ms Jennifer Gitiri, Advocate & Public Officer, Long’et Terer

Office of the Attorney General & DoJ
Editor/CEO
Members co-opted to serve in ad-hoc Advisory Capacity

Ms Anne Amadi Mrs Flora Mutua
Chief Registrar, The Judiciary Senior Management Consultant, Directorate of
Personnel Management Services,
Michael Sialai, EBS Ministry of Devolution and Planning
Clerk of the Kenya National Assembly Represented
by Samuel Njoroge, Dep. Director, Legislative and Mr Joash Dache
Procedural Services Secretary/CEO Kenya Law Reform Commission
Mr Jeremiah M Nyegenye
Clerk of the Senate Represented by Mrs Eunice
Gichangi
Disclaimer:
While the National Council for Law Reporting has made every effort to ensure both the accuracy and
comprehensiveness of the information contained in this publication, the Council makes no warranties
or guarantees in that respect and repudiates any liability for any loss or damage that may arise from an
inaccuracy or the omission of any information.
BB Issue 38, July - September 2017
Editor’s Note
Long’et Terer
CEO/Editor
O
n September 1 2017, Kenya made history in the electoral sphere as the fourth
country in the world, and the first in Africa, to have a presidential election
nullified by the courts. Other countries that have had presidential elections
nullified are Austria and the Maldives, an island nation in the Indian Ocean. Austria is
part of the European Union. Ukraine’s Supreme Court also annulled the presidential
elections that were held in November 2004. The judges ruled that the Central Election
Commission acted improperly by declaring the Prime Minister Viktor Yanukovich the
winner, and ordered a run-off. The Maldives, a South Asian island nation in the Indian
Ocean of less than 500,000 inhabitants had its presidential election nullified when
four judges of a seven-member Supreme Court ruled that the election of September 7,
2013, was too tainted to determine the winner. Like in the Kenyan case, international
observers had given the election in the Maldives a clean bill of health. Fresh elections
were held two months later where incumbent Mohamed Waheed Hassan came fourth.
In July 2016, Austria’s highest court annulled the election of President Alexander Van
der Bellen of the Greens Party who had beaten his challenger, Norbert Hofer of the
Freedom Party by 30,863 votes, a mere one per cent. President Bellen eventually won
the fresh election that was also held within 60 days after beating the petitioner with a
clear margin.
The decision of the Supreme Court of Kenya has led to parallels being drawn with
electoral law frameworks all over the world. Kenya adopted a new Constitution in
2010. The Constitution was adopted in the wake of post-election violence in 2007. The
Kenyan Constitution, in relation to election disputes, allows for the determination of
election petitions based on irregularities. The Constitution spells out that no president
elect can be sworn into office if an election petition has been filed with the Supreme
Court in accordance with the election laws. The Supreme Court was required to hear
and determine the petition within fourteen days from the date of filing of the election
petition with the Court.
The ruling by Chief Justice David Maraga was ice breaking in a country where elections
have always been turbulent political affairs. The decision of the Supreme Court not
only emboldens the independence of the Judiciary, but also reinforces the promise of
the rule of law globally, and more importantly, on the African Continent.
This edition of the Bench Bulletin focuses on the Presidential election petition and seeks
to shed some light on the three other petitions in recent memory where a presidential poll
has been annulled by the Courts. The Bulletin also looks at international comparative
analysis that had a presidential election petition recently.
1
CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya
Statement By Hon. David K. Maraga, EGH, Chief Justice of

The Republic Of Kenya And President of the Supreme Court,
On The Judiciary’s Preparedness For Elections Dispute
Resolution, August 3, 2017
R
ight from Independence, Kenya has been a democratic state
governed by the rule of law. On August 27, 2010, the Kenyan
people gave themselves a new Constitution derived from public
participation and approved through popular vote. That Constitution
makes extensive provisions on matters Kenyans hold dear such as
national values, devolution, good governance and an elaborate Bill of
Rights.
On good governance, the Kenyan Constitution provides when and how

to conduct elections. Elections, as we know, provide citizens with an
opportunity every five years to determine the people they want to
lead them. In the event of electoral disputes, the Constitution
authorizes the Judiciary to resolve them and sets out the timelines
within which they should be determined as well as the rules and
procedures to be followed in such exercises.
To deliver on its mandate, the Judiciary has a standing

committee, the Judiciary Committee on Elections (the Committee)
which spearheads administrative arrangements and capacity building
measures for Judges and Judicial Officers and generally prepares the
Judiciary to efficiently and expeditiously determine electoral disputes
that arise from general elections in our country. The efforts
of that Committee enabled the Judiciary to determine, within the
set timelines, the 188 election petitions that arose from the 2013
General Election.
Next week - on August 8 - Kenya will hold the second General Election
under the new Constitution. Under the aegis of the Committee,
the Judiciary has put in place preparatory arrangements for
the resolution of the electoral disputes bound to arise from these
elections. The Committee has carried out a wide range of activities in
preparation for the elections, the key ones being the following:
One, intensive refresher training for the Judges and Magistrates

who will handle electoral disputes. This was necessitated by the
changes made in Election Laws since 2013, and the gaps that were
noted during the 2013 petitions and a review of the electoral dispute
resolution jurisprudence arising from the 2013 petitions. Virtually all
2
judicial officers of the rank of Senior Resident Magistrate and

above, including the High Court, Court of Appeal and Supreme Court
judges, have been trained.
Two, the Committee has been at the forefront of reforming the

Election Disputes Resolution - EDR laws and has consistently
engaged the National Assembly on this. Some of our proposals were
adopted, such as the amendment to Section 76 of the Elections
Act to require that the filing of a petition be done within
28 days from the declaration of an election result, rather than from

date of publication in the Gazette were adopted.
Other proposals, such as the extension of timelines for hearing

and determination of the Presidential Petition, were rejected. This
means we are still bound by the Constitutional requirement that the
Presidential petition be heard and determined within 14 days of filing.
This has required us to put in place a number of administrative
and procedural arrangements that will make this possible. Some of
the journalists here may already have participated in planning
meetings aimed at ensuring that, should there be a Presidential
petition, the media are well facilitated to access the Supreme Court
and communicate the proceedings to the public.
Three, the election rules of procedure for the different courts have
been revised and gazetted, and subsequently compiled into what is
referred to as The Grey Book. This is a compendium of all the rules and
laws relating to the elections. Indeed it is one of the EDR tools we are
launching this morning.
The Elections (Parliamentary and County Elections) Petition

Rules, 2017 were gazetted in June this year, while the Supreme Court
(Presidential Election Petition) Rules and the Court of Appeal
(Election Petition) Rules, 2017 which were gazetted last week. The Court
of Appeal (Election Petition) Rules have been developed for the first time
while the other two rules are updated from the 2013 Rules.
Four, we are assembled here this morning to launch the Bench Book
on Electoral Disputes Resolution which the Committee has prepared
to build on the work already undertaken. This is a quick reference
guide to be used by judges and magistrates as they handle the
petitions. The Bench Book, which is the first one in Kenya’s history,
contains summary procedures in EDR, highlights key legal
provisions from the Constitution, the legislation and regulations
governing EDR and the relevant jurisprudence in thematic areas.
It also provides a quick reference of key resources and authorities.
I am happy to launch this important book today, which has been

produced through the painstaking efforts of the Technical Committee
on EDR led by the chairperson, Justice Stella Mutuku.
We are aware that public confidence in the Judiciary as a neutral and

credible arbiter of electoral disputes rests on how fairly and efficiently
we resolve these disputes.
Following the promulgation of the new Constitution in 2010, the
3
Judiciary has been undergoing a process of transformation to

strengthen its role as one of the three arms of the government
exercising delegated authority from the people of Kenya. We have
embraced this honour with a steadfast commitment to ensuring
that the administration of justice is efficient and independent and that
our services are accessible to all Kenyans. This is at the heart of
the transformation of the Judiciary which we have been carrying out
steadfastly in the last six years.
Kenyans, you have seen how we have in the last two to three months,
impartially and efficiently handled electoral related disputes.
Both orders of the political divide have won and lost cases they or their
surrogate have brought to us.
This is a clear demonstration of our preparedness.
Once again, I want to assure the country that the Judiciary is ready
and able to resolve all electoral disputes which may arise from the
General Election. I will, if necessary, allow our judicial officers to
work outside the official hours – into the night and through weekends
– to ensure that we keep to the Constitutional timelines without
compromising on the quality of rulings.
We must never forget the crisis that gripped Kenya in the aftermath
of the 2007 General Election. Those horrid events will always be a
reminder that when electoral disputes are left in the hands of non-
judicial processes, Kenyans pay an enormous price.
I therefore urge those dissatisfied with results of elections at any level

to file their petitions in court.
Thank you.
HON.JUSTICE DAVID K. MARAGA, EGH, CHIEF

JUSTICE AND PRESIDENT OF THE SUPREME COURT.
4
The Kenya Law Android app
The Kenya Law Android app contains:

The Constitution of Kenya, 2010.
Selected Statutes of high public interest.
The Kenya Gazette.
Cause List (integrated with Kenya Law’s website).
Case Search (which is integrated with Kenya

Law’s Case law database).
This mobile app was borne out of collaboration between:
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What they said
“
Section 39 of the Elections Act was amended by
introducing subsection (1C) to specifically provide for
the transmission of presidential results. Pursuant to the
constitutional principles of transparency, impartiality,
neutrality, efficiency, accuracy and accountability under
the present legal regime, in the presidential election, the
votes cast at each polling centre are to be counted, tabulated and
the outcome of that tabulation announced without delay by the
presiding officer. The results announced at each polling station
are to be transmitted to the constituency returning officer, who
in turn will openly and accurately collate the results from the
various polling stations in the constituency and then promptly
announce the outcome of the collation. From the constituency
tallying centre, the returning officer will electronically transmit
the results directly to the national tallying centre”.
Court of Appeal Judges at Nairobi - Independent Electoral & Boundaries Commission v
Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition
for Reforms & Democracy, Civil Appeal No. 105 of 2017
“
Public participation has to apply to all procurement
processes but the degree and form of participation depends
on the peculiar circumstances of the procurement. Public
participation should not be a cosmetic venture or a public
relations exercise”.
High Court Judges at Nairobi – J Ngugi, G V Odunga & J M Mativo, JJ in Republic v
Independent Electoral and Boundaries Commission (IEBC) & 6 others Ex Parte National
Super Alliance (NASA) Kenya. Judicial Review No 378 of 2017
“
The objective of the criminal justice process is for there
to be a true verdict after a fair trial. Where wrongful
convictions have occurred, or new evidence has emerged,
which undermine the safety of a conviction, such wrongful
convictions should be quashed and retrials ordered”.
High Court at Nairobi - J M Mativo in Philip Mueke Maingi v Republic. Petition No. 436
of 2017
6
“
Section 44(8) of the Elections Act provides for the
establishment of a technical committee to oversee the adoption
of technology in the electoral process and implement the
use of such technology. That section can be used to involve
governmental, political or other partisan influences in the
implementation of the electronic electoral processes contrary
to article 249(2) of the Constitution. The effect of section 44(8) of
the Elections Act therefore contravenes articles 88 and 249(2) of
the Constitution with respect to the independence of IEBC and it is
therefore unconstitutional”.
High Court at Nairobi – P Nyamweya, M Ngugi, E Mwita in Kenneth Otieno v Attorney
General & Independent Electoral and Boundaries Commission. Petition No. 127 of 2017
“
There is no evidence which meets the standard of proof
required showing that the President and an official of the
1st Interested Party had a meeting. The evidence tendered
to prove the allegations of such a meeting fell below the
required standard. Newspaper cuttings and other media
print-outs are insufficient to discharge the high burden
of proof required to prove the allegations. There is danger in
relying on such evidence. Apart from denying the party against
whom the allegations are made a chance to confront the author
to test the veracity of its contents, it can also allow for a party
to stage manage or otherwise influence the production of the
document in an effort to influence the Court”.
High Court at Nairobi – J Ngugi, G V Odunga & J M Mativo, JJ in Republic v Independent
Electoral and Boundaries Commission (IEBC) & 6 others Ex Parte National Super Alliance
“
(NASA) Kenya. Judicial Review No 378 of 2017
It is apparent that the resignation of a County Governor from

his sponsoring party to another political party is not one of the
grounds under which the office of the Governor can become
vacant. The provisions for the vacation of the office of a
County Governor, the executive of a County, are analogous to
the provisions with respect to the vacation of the office of the
President under article 146 of the Constitution. Had the intention of
the drafters of the Constitution been that the office of the Governor
and President should fall vacant once the holders of those offices
change their political party allegiance, then articles 182 and 146 of the
Constitution would have made specific provisions to that effect”.
High Court at Kisii – M Ngugi, W Okwany & John Onyiengo, JJ in George Obuya Owuor & 2
others v Zachary Okoth Obado & 3 others. Petition No. 3 of 2017
7
Feature case
By Long’et Terer
CEO/Editor
Odinga & another v Independent Electoral and Boundaries Commission

& 2 others [2017] eKLR
Presidential Election Petition No 1 of 2017
Supreme Court of Kenya
D Maraga, CJ; P Mwilu, DCJ; J B Ojwang, S C Wanjala, S N Ndung’u & I Lenaola, SCJJ
September 20, 2017
Reported by: Long’et Terer
Electoral law – presidential election –validity Act- Elections Act, section 39(1C)
of a presidential election-petition challenging the
Statutes-interpretation of statutes- cannons of
validity of the president elect-allegations of non-
statutory interpretation-interpretation of section
compliance with the Constitution and electoral
83 of the Elections Act- where the section had
laws- allegations of various irregularities and
two limbs-compliance with the law on elections,
illegalities during the conduct of the elections –
and irregularities that may affect the result of
what are the principles of free and fair elections
the election-what was the proper interpretation
-whether the 2017 Presidential Election was
of section 83 of the Elections Act- whether the
conducted in accordance with the principles laid
two limbs in the provision were conjunctive or
down in the Constitution of Kenya,2010 and the
disjunctive- whether the section was applicable
written laws relating to elections- whether there
to all other elections disputes other than the
were irregularities and illegalities committed in
presidential election dispute-Elections Act, section
the conduct of the 2017 Presidential Election and
83
if in the affirmative, what was their impact, if
any, on the integrity of the election- Constitution Evidence-burden of proof- concept of burden
of Kenya, 2010, articles 81, 86,138, Elections Act of proof - what amounts to burden of proof in
2011, sections 39 (1c), 44, 83;Elections (General) a presidential election petition- the party on
Regulations, 2012 Regulation 87(1)(b) whom the burden of proof lies - circumstances
under which the evidential burden of proof shifts-
Electoral law-presidential elections-electoral
Evidence Act, section 107
process-transmission of results and declaration
of results-verification of results-process to be Evidence-standard of proof- nature of standard
followed-whether the Court of Appeals’ decision of proof in election matters- whether the standard
in the case of Maina Kiai provided a justification of proof is higher than the balance of probability
for declaring the results of the election of the but lower than beyond reasonable doubt
president by the National Returning Officer Electoral laws-election offences-undue
without reference to Forms 34A-whether the Court influence- what is the meaning of the term
of Appeal’s decision relieved the 1st Respondent “undue influence” in the context of an electoral
from its statutory responsibility of electronically malpractice and particularly as used under
transmitting in the prescribed form, the tabulated section 10 of the Election Offences Act- Election
results of an election for the president from a Offences Act, section 10, 14(1) and (2)
polling station to the Constituency Tallying
Center and to the National Tallying Center in Electoral law- presidential election-winning
accordance with section 39(1C) of the Elections candidate-requirements to be met for a candidate
8
to be declared duly elected as president- of the Constitution, as the Returning Officer

computation to determine the threshold of 50% of the Presidential election, declared the 3rd
+1-what is meant by the “votes cast” to be taken Respondent, Uhuru Muigai Kenyatta, the
into account in the computation to determine winner of the elections with 8,203,290 votes
the threshold of 50% +1 - valid versus rejected and the 1st Petitioner , Raila Amollo Odinga
votes in a presidential election- what is the as the runner’s up with 6,726,224 votes. On
meaning of the words “votes”, “cast” and “ballot August 18, 2017, the Petitioners, Raila Amolo
papers-Constitution of Kenya, 2010 article Odinga and Stephen Kalonzo Musyoka,
138(4);Elections Act section 2 who were the presidential and deputy
presidential candidates respectively of the
Constitutional law – bill of rights – right to
National Super Alliance (NASA) Coalition of
challenge the results of a presidential election
parties, running on an Orange Democratic
petition - whether election petitions are right
Movement (ODM) party ticket and WIPER
centric or form centric
Democratic Movement ticket respectively,
Constitutional law –bill of rights – bill of rights filed the instant petition challenging the
vis a vis directive principles in the Constitution declared result of that Presidential election
- where there is a conflict between constitutional (the election).
fundamental freedoms and the directive principles
The Petition was anchored on the grounds
in the Constitution which one prevails?
that the conduct of the 2017 presidential
Precedent – doctrine of stare decisis - critical election violated the principles of a free and
aspect of the doctrine of stare decisis - effect of fair election as well as the electoral process
reversing the electoral jurisprudence already set out in the Constitution, electoral laws
settled by the apex court and applied across the and regulations and that the Respondents
country at all levels within a judicial system. committed errors in the voting, counting and
Electoral law – general elections – transmission tabulation of results; committed irregularities
of election results – where it was alleged that and improprieties that significantly affected
use of technology is a mandatory process of the election result; illegally declared as
transmission of election results – whether rejected unprecedented and contradictory
Kenya’s electoral process comprises both manual quantity of votes; failed in the entire process
and electronic components – Elections Act section of relaying and transmitting election results
39, 44 and 44A as required by law; and generally committed
other contraventions and violations of the
Brief Facts electoral process.
On August 8, Kenya held the second general The Petitioners argued that the IEBC
election under the Constitution of Kenya, committed massive systemic and systematic
2010 (Constitution). It was the first time irregularities which went to the very core
that a general election was held under article and heart of holding elections. It was the
101(1) of the Constitution which decreed the Petitioners’ case that the election was
holding of general elections every five years on marred and significantly compromised by
the second Tuesday of August in the 5th year. intimidation and improper influence or
The general election was also held for the first corruption. The most critical and persistent
time under an elaborate regime of electoral claim was non-compliance with the law, the
laws including amendments to the Elections argument being that the 1st Respondent
Act made to introduce the Kenya Integrated announced results on the basis of Forms 34B
Electoral Management System (KIEMS) before receiving all Forms 34A. It was also
which was a new device intended to be used alleged that the results announced in Forms
in the biometric voter registration, and, on 34B were different from those displayed on
the election day, for voter identification as the 1st Respondents’ Public Web Portal.
well as the transmission of election results
from polling stations simultaneously to the The Petitioners similarly claimed that the
Constituency Tallying Centre (CTC) and the IEBC deliberately inflated votes cast in favour
National Tallying Centre (NTC). of the 3rd Respondent. As a consequence,
they further argued, it was impossible to
On August 11, 2017, the 2nd Respondent, determine who actually won the presidential
exercising its mandate under article 138(10) election and/or whether the threshold for
9
winning the election under the Constitution Petitioners. They submitted instead that the
was met. total number of rejected ballots was 81,685
as declared in Form34C, a percentage of
The Petitioners’ further case was that
0.54% of the votes cast. They thus urged that
the results that were streaming in from
the rejected ballots were properly excluded
August 8, 2017 to August 11, 2017 showed
from valid votes in accordance with the law.
a consistent difference of 11% between
the results of Uhuru Kenyatta and Raila The 3rd Respondent in addition to the above
Odinga. According to the Petitioners, such urged that a party seeking the nullification
a pattern indicated that the results were of a presidential election; -bears the burden
not being streamed in randomly from the of proving that not only was there non-
different polling stations but that they were compliance with the election law but that the
being held somewhere and adjusted using non-compliance also affected the results of
an error adjustment formula to bring in a the election. He thus submitted that the only
pre-determined outcome of results. Inter way the Petitioners could impugn the results
alia they claimed that the electronic system reflected in Forms 34A and 34B was through
of transmission was compromised by third demonstrating either that legal votes were
parties who manipulated it and generated rejected or that illegal votes were allowed
numbers for transmission to the NTC. The and that that had an effect on the election.
Petitioners also took issue with the large
Following the Petitioner’s application at the
number of rejected votes accounting for at
pre-trial stage, the Court granted an order
least 2.6% of the total votes cast arguing that
for scrutiny and access on terms that the
that had an effect on the final results and the
Petitioners and the 3rd Respondent were
outcome of the presidential election.
to attain read only access to the Certified
The 1st and 2nd Respondents filed a joint photocopies of the original Forms 34As 34Bs
response, while the 3rd Respondent filed a and 34Cs prepared at and obtained from
separate response to the petition. They all the polling stations by Presiding Officers
opposed the petition and urged the Court and used to generate the final tally of the
to find that IEBC conducted a free, fair and Presidential election; to the Forms 34A, 34B
credible election. It was the Respondents’ case and 34C from all 40,800 polling stations; and
that the presidential election was conducted to the scanned and transmitted copies of all
in accordance with the Constitution, the Forms 34A and 34B.
IEBC Act, the Elections Act, the Regulations
The scrutiny process was conducted under
thereunder, and all other relevant provisions
the supervision of the Registrar of the Court
of the law. The Respondents claimed that,
and a report filed.
contrary to the allegations of the Petitioners,
the process of relay and transmission of The Registrar made the following
results from the polling stations to the CTC observations:
and to the NTC, and from the CTC to the a) Certain forms 34As appeared to
NTC was simple, accurate, verifiable, secure, have been duplicated;
accountable, transparent, open and prompt b) Certain forms 34As and 34Bs
as required by Article 81 (e) (iv) and (v) of the appeared to be carbon copies;
Constitution. c) Certain forms 34As and 34Bs
The Respondents submitted that the alleged appeared to be photocopies;
inaccuracies and inconsistencies in Forms d) Some of the forms had no
34A and 34B were minor, inadvertent and evidence of being stamped or
in their totality did not materially affect the signed.
declared results. They urged the Court to find It was recorded that out of the 291 Forms 34B
that the Petitioners had not substantiated the scrutinized; 56 forms bore no watermark, 5
claim that the said irregularities affected at forms had not been signed by the returning
least 7 million votes. officer, 31 forms had no serial numbers, 32
forms had not been signed by the respective
According to the 1st and 2nd Respondents,
party agents, the “hand over” section of 189
the rejected votes did not account for 2.6%
forms had not been filled and the “take over”
of the total votes cast as contended by the
section of 287 forms had not been filled.
10
Further, a random scrutiny of 4,299 Forms of section 83 of the Elections Act;

34A across 5 Counties was undertaken to whether the two limbs in the provision
check and confirm; whether the forms bore (compliance with the law on elections,
the watermarks and the serial numbers; and irregularities that may affect the
whether the forms had been signed and result of the election) were conjunctive
stamped by the presiding officers; whether or disjunctive?
there was involvement of the party agents. viii. What are the principles of free and fair
elections?
Some of the issues emanating from the
ix. Whether the 2017 Presidential
scrutiny of Forms 34A were that:
Election was conducted in accordance
a) some forms were carbon copies; with the principles laid down in the
b) others were the original Forms 34As Constitution and the written law
but did not bear the IEBC stamp; relating to elections.
c) other forms were stamped & scanned x. Whether the Court of Appeals’ decision
while others were photocopies; in the case of Maina Kiai provided a
d) others had not been signed. justification for declaring the results
The report further indicated that out of the of the election of the president by the
4,299 Forms 34As, 481 were carbon copies, National Returning officers without
but signed, 157 were carbon copies and reference to Forms 34A.
were not signed; 269 were original copies xi. Whether the Court of Appeal’s decision
that were not signed; 26 of the Forms were in the case of Maina Kiai relieved the
stamped and scanned. 1 form was scanned 1st Respondent from its statutory
and not stamped; 15 had not been signed by responsibility of electronically
agents, 58 were photo copies of which 46 had transmitting in the prescribed form,
not been signed; and 11 had no watermark the tabulated results of an election for
security feature. the president from a polling station to
The Petitioners contended that the report the CTC and to the NTC in accordance
had proved beyond reasonable doubt, that with section 39(1C) of the Elections
the election process was shambolic. They Act.
contended that the Form 34C which was xii. Whether there were irregularities and
used to announce the presidential results illegalities committed in the conduct of
had no security features and hence the the 2017 Presidential Election and if in
authenticity of the results as announced in the affirmative, what was their impact,
Form 34C could not be guaranteed. if any, on the integrity of the election?
xiii. What is the meaning of the term
Issues by Majority (D Maraga, CJ; P Mwilu, ‘undue influence’ in the context of an
DCJ; S C Wanjala, & I Lenaola, SCJJ) electoral malpractice and particularly
i. What amounts to the burden of proof as used under section 10 of the Election
in a presidential election petition? Offences Act?
ii. To which party does the burden of proof xiv. Whether the Supreme Court could
lie and what are the circumstances adjudicate on an issue which was still
under which the evidential burden of the subject of judicial determination at
proof shifts? the High Court.
iii. What is the standard of proof required
in an election petition? per JB Ojwang (Dissenting)
iv. What is the meaning of the words i. Whether the Petition was based
“votes”, “cast” and “ballot papers?” on facts; whether the Petitioners
v. The place of valid versus rejected votes discharged the burden of proof and
in a Presidential Election in Kenya. whether the Respondents discharged
vi. The meaning of “votes cast” to be taken the evidential burden.
into account in the computation to ii. Whether the Presidential election was
determine the threshold of 50% +1 badly conducted, administered and
under article 138(4) of the Constitution managed that it failed to comply with
of Kenya, 2010. the governing principles established
vii. What was the proper interpretation under the Constitution and the
11
electoral laws. that the electoral system “shall comply”, inter

iii. Whether the Presidential election alia “with … the principles … of free and fair
contravened the principles of free and elections, which are—
fair elections under article 81(e) of the (i) by secret ballot;
Constitution as read with section 39 of (ii) free from violence, intimidation,
the Elections Act. improper influence or corruption;
iv. Whether the Petitioners’ claims in the (iii) conducted by an independent
petition formed a basis for annulling body;
the outcome of the Presidential (iv) transparent; and,
election held on August 8, 2017. (v) administered in an impartial,
v. Did the applicable electoral laws affect neutral, efficient, accurate and
the Presidential election differently accountable manner.
from the manner in which it affected
the other five sets of elections held on Article 86 of the Constitution
the same date? “[a]t every election, the Independent Electoral
and Boundaries Commission shall ensure
per N S Ndungu SCJ (Dissenting)
that—
i. Whether election petitions are right
(a) whatever voting method that is
centric or form centric.
used, the system is simple, accurate,
ii. Whether the 2017 Presidential
verifiable, secure, accountable and
Election was conducted in accordance
transparent;
with the principles laid down in the
(b) the votes cast are counted,
Constitution and the law relating to
tabulated and the results announced
elections.
promptly by the presiding officer at
iii. Whether the 3rd Respondent was validly
each polling station;
and properly elected to the office of
(c ) the results from the polling
President of the Republic of Kenya.
stations are openly and accurately
iv. What was the import of section 39,
collated and promptly announced
44 and 44A as far as transmission of
by the returning officer, and
election results was concerned?
(d) appropriate structures and
v. Whether technology was a mandatory
mechanisms to eliminate electoral
component of Kenya’s Electoral
malpractice are put in place
transmission process.
including the safe keeping of
vi. What is the distinction between the
election materials.
legal burden and the evidentiary
burden of proof in election petitions?
vii. Whether there was an express
Article 138 (3) (c) of the Constitution” It
statutory requirement that imposed
provides that:
an obligation on the 1st Respondent to
avail forms 34A and 34B. “in a presidential election- after
viii. What is the effect of reversing the counting the votes in the polling
electoral jurisprudence already settled stations, the Independent Electoral
by the court and applied across the and Boundaries Commission shall
country at all levels of Kenya’s judicial tally and verify the count and
system? declare the result.”
ix. Where there is a conflict between
constitutional fundamental freedoms Elections Act
and the directive principles in the Section 2 defines the phrase “ballot paper” to
Constitution, which one prevails? mean “a paper used to record the choice made
x. What is the proper test for verification by a voter and shall include an electronic
of an electoral process? version of a ballot paper or its equivalent for
purposes of electronic voting.”
Relevant Provisions of the Law
Section 4 of the Election Act to
Constitution of Kenya, 2010
provide that:
Article 81(e) requires, in mandatory terms,
“There shall be a register to be
12
known as the Register of Voters (a) electronically transmit, in the
which shall comprise of - prescribed form, the tabulated
(a) a poll register in respect of every results of an election for the
polling station; President from a polling station to
(b) a ward register in respect of the Constituency tallying centre
every ward; and to the national tallying centre;
(c) a constituency register in respect (b) tally and verify the results
of every constituency; received at the national tallying
(d) a county register in respect of centre; and
every county; and (c) publish the polling result
(e) a register of voters residing in forms on an online public portal
Kenya. maintained by the Commission.
Section 10 (1) of the Elections Act provides Section 44 of the Elections Act; subsection
that: (1) of which provides that:
“A person whose name and “there is established an integrated
biometric data are entered in a electronic electoral system that
register of voters in a particular enables biometric voter registration,
polling station, and who produces electronic voter identification and
an identification document shall electronic transmission of results.”
be eligible to vote in that polling
station.” Subsection (3) thereof provides that:
“the Commission shall ensure
Section 6A provides inter alia; that: that the technology in use under
(1) “The Commission shall, subsection (1) is simple, accurate,
not later than sixty days verifiable, secure, accountable and
before the date of a general transparent.”
election, open the Register
for verification of biometric Section 44A of the Elections Act provides:
data by members of the public “Notwithstanding the
at their respective polling provisions of Section
stations for a period of thirty 39 and Section 44, the
days. Commission shall put in place
(2) The Commission shall, a complementary mechanism
upon expiry of the period for the identification of voters
for verification specified and transmission of election
under subsection (1), revise results that is simple, accurate,
the Register of Voters to take verifiable, secure, accountable
into account any changes in and transparent to ensure that
particulars arising out of the the Commission complies
verification process. with the provisions of Article
38 of the Constitution.”
(3) The Commission shall,
upon expiry of the period for Elections (General) Regulations, 2012
verification specified under Regulation 87(1)(b)
subsection(1) publish- …the “87. (1) The constituency
Register of Voters online and returning officer shall, as soon
in such manner as may be as practicable
prescribed by regulations.
(a)…
Section 39(1C) of the Elections Act (b) deliver to the National
addresses the results transmission. It tallying centre all the Form
provides that: 34B from the respective
“For purposes of a presidential polling stations and the
election the Commission shall- summary collation forms.”
Election Offences Act “For the purposes of this section, the

Section 10 of the Election Offences Commission shall, in writing require
Act provides: any candidate, who is a Member
of Parliament, a county governor,
Undue Influence a deputy governor or a member
(1) A person who directly or indirectly in of a county assembly, to state the
person undue influence or through another facilities attached to the candidate
person on his behalf uses or threatens to use or any equipment normally in the
any force, violence including sexual violence, custody of the candidate by virtue
restraint, or material, physical or spiritual of that office.”
injury, harmful cultural practices, damage
or loss, or any fraudulent device, trick or Leadership and Integrity Act
deception for the purpose of or on account Section 23 provides:
of” 1. An appointed State officer, other than
(a) Inducing or compelling a person a Cabinet Secretary or a member of
to vote or not to vote for a particular a County executive committee shall
candidate or political party at an not, in the performance of their
election; duties
(b) Inducing or compelling a (a) Act as an agent for, of further
person to refrain from becoming a the interests of a political party
candidate or to withdraw if he has or candidate in an election; or
become a candidate; or
(c)Impeding or preventing a (b) Manifest support for or
person from being nominated as a opposition to any political party
candidate or from being registered or candidate in an election.
as a voter, Commits the offence of 2. An appointed State Officer or
undue influence. public officer shall not engage
(2) … in any political activity that
(3) A person who directly or indirectly may compromise or be seen to
by duress or intimidation”” compromise the political neutrality
(a) Impedes, prevents or threatens of the office subject to any laws
to impede or prevent a voter from relating to elections.
voting; or
(3) Without prejudice to the
(b) In any manner influences the
generality of sub-section (2) a
result of an election, commits an
public officer shall not
offence.
(4) … (a) Engage in the activities of any
political party or candidate or act
Section 14(1) and (2) of the Election as an agent of a political party or
Offences Act provides: a candidate in an election;
(1) Except as authorized under
this Act or any other written law, a (b) Publicly indicate support
candidate, referendum committee for or opposition against any
or other person shall not use political party or candidate
public resources for the purpose of participating in an election.
campaigning during an election or a Held: by Majority (D Maraga, CJ; P Mwilu,
referendum. DCJ; S C Wanjala, & I Lenaola, SCJJ)
(2) No government shall publish 1. The common law concept of burden
any advertisements of achievements of proof (onus probandi) is a question
of respective government either in of law which can be described as the
the print media, electronic media, duty which lies on one or the other of
or by way of banners or hoardings the parties either to establish a case or
in public places during the election to establish the facts upon a particular
period. issue. The law places the common law
Section 14(3) provides: principle of onus probandi on the person
14
who asserts a fact to prove it. Section 107 law.

of the Evidence Act, Cap 80 of the Laws 5. Besides the burden of proof, the law also
of Kenya, legislates that principle in the imposes a degree of proof required to
words: “Whoever desires any Court to establish a fact. The extent of the proof
give Judgment as to any legal right or required in each case is what, in legal
liability dependent on the existence of parlance, is referred to as the standard of
facts which he asserts must prove that proof. Black’s Law Dictionary defines it
those facts exist.” as the degree or level of proof demanded
2. An applicant who seeks to annul an in a specific case in order for a party to
election bears the legal burden of proof succeed.
throughout. Thus a Petitioner who seeks 6. In electoral disputes, the standard of
the nullification of an election on account proof remains higher than the balance
of non-conformity with the law or on the of probabilities but lower than beyond
basis of irregularities must adduce cogent reasonable doubt and where allegations
and credible evidence to prove those of criminal or quasi criminal nature are
grounds to the satisfaction of the court. made; it is proof beyond reasonable doubt.
That is fixed at the onset of the trial and Electoral disputes are not ordinary civil
unless circumstances change, it remains proceedings hence reference to them
unchanged. In this case therefore, it was as sui generis. It must be ascertainable,
the Petitioners who bore the burden of based on the evidence on record, that the
proving to the required standard that, allegations made are more probable to
on account of non-conformity with the have occurred than not.
law or on the basis of commission of 7. It was imperative that the meaning of
irregularities which affected the result the phrase “votes cast” in article 138(4)
of the election, the 3rd Respondent’s be clearly understood. No controversy
election as President of Kenya should arose as to the meaning of the word
have been nullified. ‘cast’. In elections, the term referred to
3. Though the legal and evidential burden the ballot papers inserted into ballot
of establishing the facts and contentions boxes. The problem which arose is the
which will support a party’s case is static correct meaning that should be ascribed
and remains constant throughout a trial to the term “votes.” Neither the Kenyan
with the plaintiff, however, depending Constitution nor the Elections Act
on the effectiveness with which he defined the term “vote.” The Elections
or she discharges that, the evidential Act, however, defined the term “voter”
burden keeps shifting and its position to mean “a person whose name is
at any time is determined by answering included in a current register of voters.”
the question as to who would lose if no Black’s Law Dictionary defines a ‘vote’
further evidence was introduced. as “the expression of one’s preference
4. Once the Court is satisfied that the or option in a meeting or election by
Petitioner has adduced sufficient ballot, show of hands or other type of
evidence to warrant impugning an communication.” The Dictionary of
election, if not controverted, then Modern Legal Usage defines the term
the evidentiary burden shifts to the as an “opinion expressed, resolution or
Respondent, in most cases the electoral decision carried, by voting.”
body, to adduce evidence rebutting that 8. From the definitions, particularly the one
assertion and demonstrating that there in the Black’s Law Dictionary referring
was compliance with the law or, if the to a vote as “the expression of one’s
ground is one of irregularities, that they preference or option”, the distinction
did not affect the results of the election. between a ballot paper and a vote is
In other words, while the Petitioner bears clearly discernible. A ballot paper is the
an evidentiary burden to adduce ‘factual’ instrument in which a voter records his
evidence to prove his/her allegations of choice, while a vote is the actual choice
breach, then the burden shifts and it made by a voter. A ballot paper does not
behoves the Respondent to adduce become a vote by merely being inserted
evidence to prove compliance with the into the ballot box, as it may later turn
15
out to be rejected. whether or not the two limbs were

9. A voter is said to have cast his or her vote conjunctive or disjunctive. It was
when the procedure under Regulations unequivocally clear that, the use of the
69(2) and 70 of the Elections (General) term ‘and’ in the cited English provisions
Regulations, 2012 was followed. That rendered the two limbs conjunctive
meant that, upon receipt of the ballot under the English law. Save for minor
paper, the voter proceeds to mark changes, the conjunctive norm in the two
correctly, indicating his exact choice of limbs of the provision as captured in the
the candidate he wishes to vote for, and two English provisions appeared to have
then inserts that marked ballot paper been borrowed lock, stock and barrel by
into the respective ballot box for the many Commonwealth countries, notably
election concerned. Nigeria, Ghana, Zambia, Tanzania and
10. There was nothing in the Constitutional Uganda to mention but a few. However,
Review Commission’s Report or in the under both the repealed National
Parliamentary Hansard Report giving Assembly and Presidential Elections Act
the basis for the change from “valid votes (section 28) and the current Elections
cast” in section 5(3)(f) of the Constitution Act (Section 83) the term used was “or”
of Kenya, Repealed to “votes cast” in instead of “and” appearing in the English
article 138(4) of the Constitution of Acts. The use of the word “or” clearly
Kenya, 2010. Comparative jurisprudence made the two limbs disjunctive under the
from New Zealand; Canada; the United Kenyan law. It was, therefore, important
Kingdom; Ireland; the Netherlands; that, while interpreting section 83 of the
India and South Africa showed that Kenyan Elections Act, that distinction
rejected votes count for nothing. In the is borne in mind. In the circumstances,
circumstances, a rejected vote, a vote authorities from many Commonwealth
which is void, a vote that accords no countries, such as Nigeria, Ghana,
advantage to any candidate, could not be Zambia, Tanzania and Uganda whose
used in the computation of determining provisions were not in sync or exact
the threshold of 50% + 1. A purposive parri materia with the Kenyan one may
interpretation of article 138(4) of the not be useful.
Constitution, in terms of article 259 13. Section 83 of the Kenyan Elections Act
of the Constitution, led to only one was different from other countries in
logical conclusion: that the phrase two other fundamental aspects. First,
votes cast in article 138(4) meant valid the Kenyan Act did not have the word
votes. Consequently, the Court’s view ‘substantially’ which was in many of the
in the 2013 Raila Odinga case would be provisions of other countries. Secondly,
maintained. and fundamentally, in 2011, the Elections
11. The Court in the 2013 Raila Odinga Act (No. 24 of 2011) was enacted and
case, did not render an authoritative repealed the National Assembly and
interpretation of section 83 of the Presidential Elections Act. Section 83
Elections Act as read together with the of the new Elections Act, to harmonize
relevant provisions of the Constitution. it with the Constitution of Kenya 2010,
At best, the Court only made a tangential added that to be valid, the conduct of the
reference to the section while addressing elections in Kenya must comply ‘with the
the applicable twin questions of ‘burden principles laid down in the Constitution.’
and standard of proof’ in an election That addition was purposive given that
petition. the Constitution of Kenya, Repealed, did
12. There were clearly two limbs to not contain any constitutional principles
various provisions from comparative relating to elections. In interpreting
jurisdictions that were similar to the section therefore, the Court had to
section 83 of the Kenyan Elections Act: first pay due regard to the meaning and
compliance with the law on elections, import of the constitutional principles it
and irregularities that may affect the envisaged.
result of the election. The issue in the 14. Among the well-established cannons
interpretation of the provisions was of constitutional interpretation is the
16
basic one that the Constitution must be influence or corruption, and the conduct
read as an integrated whole. Whereas of an election by an independent body in
the Petitioners listed a host of articles transparent, impartial, neutral, efficient,
of the Constitution which they alleged accurate and accountable manner.
to have been violated, the focus would 16. Among the well-established cannons
be on; article 10 which obliged all State of statutory interpretation, is the
organs, State Officers, public officers and requirement that in addition to reading
all persons to observe national values the statutes as a whole, where the words
(inter alia, good governance, integrity, are clear and unambiguous, they must
transparency and accountability) be given their primary, plain, ordinary
whenever they apply and/or interpret the and natural meaning. The language used
Constitution or other law or implement must be construed in its natural and
public policy decisions; article 38 which ordinary meaning. The sense must be
set out the political rights including the that which the words used ordinarily
right to free, fair and regular elections bear. Kenya being a Constitutional
based on universal suffrage and the free System, the interpretation of the statutes
expression of the will of the electors; must also be harmonized with the values
article 81 which set out the principles to and principles in the Constitution of
be observed in the conduct of free and Kenya 2010. The wording of section
fair elections; article 86 which set out 83 of the Elections Act was clear and
the manner of conducting referenda and unambiguous. The words of the section
elections; article 88 which established must therefore be given their natural and
the IEBC and enumerated its functions ordinary meaning.
the paramount one being conducting and 17. Guided by the principles of statutory
supervising referenda and elections; and interpretation, and given the use of the
article 138 which set out the procedure word “or” in section 83 of the Elections
for conducting presidential elections. Act as well as some of the Supreme
Those articles had to be read together Court’s previous decisions, the Court
to effectuate the purpose of electoral could not conjunctively apply the
processes in Kenya. two limbs of that section and demand
15. Particularly, under article 38, besides that to succeed, a Petitioner must not
the right to be registered as a voter and only prove that the conduct of the
to vote in any referenda or election election violated the principles in the
as well as the right to contest in any Constitution of Kenya, 2010 as well as
public elective position, every citizen other written law on elections but that
of the country is entitled to the right he must also prove that the irregularities
to free, fair, and regular elections based or illegalities complained of affected the
on universal suffrage. Article 81(e) result of the election. Such an approach
required, in mandatory terms, that the would be tantamount to a misreading
Kenyan electoral system ‘shall comply’, of the provision. Even in the English
inter alia with the principles of free and Court of Appeal decision in Morgan v.
fair elections. Article 138 (3) (c) of the Simpson, which had extensively been
Constitution basically reiterated the cited and applied in many cases in
provisions of article 86 and directed that the country, both Lords Denning and
after the counting of votes in the polling Stephenson were of the clear view that
stations, the Independent Electoral and notwithstanding the use of the word
Boundaries Commission would tally and “and” instead of the word “or” in their
verify the count and declare the result. provision, the two limbs of the section
The principles cutting across all those should be applied disjunctively.
articles include integrity; transparency; 18. Annulling of Presidential election results
accuracy; accountability; impartiality; is a case by case analysis of the evidence
simplicity; verifiability; security; and adduced before the Court. Although
efficiency as well as those of a free and fair validity is not equivalent to perfection,
election which are by secret ballot, free if there is evidence of such substantial
from violence, intimidation, improper departure from constitutional
17
imperatives that the process could be said section 83 of the Elections Act in Kenya,
to have been devoid of merit and rightly it could be inferred in the words ‘if it
be described as a spurious imitation appears’ in that section. That expression
of what elections should be, the court required that, before vitiating it, the
should annul the outcome. The Courts Court should, looking at the conduct
in exercise of judicial independence and of the whole election, be satisfied that
discretion are at liberty to annul the it substantially breached the principles
outcome of a sham election, for such is in the Constitution, the Elections Act
not in fact an election. and other electoral law. To be voided
19. The issue as to how section 83 of the under the first limb, the election should
Elections Act ought to be interpreted be ‘a sham or travesty of an election’ or
by a court of law in determining the ‘a spurious imitation of what elections
validity or otherwise of an election, was should be.’
authoritatively settled by the Supreme 21. Section 83 of the Elections Act applied
Court in Gatirau Peter Munya v. Dickson to the presidential election petitions
Mwenda Githinji and 2 others (2014) as it did to all other election disputes.
eKLR. An election should be conducted Guided by the principles in articles 10,
substantially in accordance with the 38, 81 and 86 of the Constitution of
principles of the Constitution, as set out Kenya, 2010 as well as the authorities
in article 81(e). Voting is to be conducted referred to, the two limbs in section 83
in accordance with the principles set of the Elections Act could not be given
out in article 86. The Elections Act and a conjunctive interpretation. The two
the Regulations thereunder, constitute limbs of section 83 of the Elections Act
the substantive and procedural law for should be applied disjunctively. In the
the conduct of elections. If it should be circumstances, a Petitioner who is able
shown that an election was conducted to satisfactorily prove either of the two
substantially in accordance with the limbs of the section can void an election.
principles of the Constitution and the In other words, a Petitioner who is able
Election Act, then such election is not to prove that the conduct of the election
to be invalidated only on ground of in question substantially violated the
irregularities. Where however, it is principles laid down in the Constitution
shown that the irregularities were of such as well as other written law on elections,
magnitude that they affected the election will on that ground alone, void an
result, then such an election stands to election. He will also be able to void an
be invalidated. Otherwise, procedural election if he is able to prove that although
or administrative irregularities and the election was conducted substantially
other errors occasioned by human in accordance with the principles laid
imperfection are not enough, by and of down in Kenya’s Constitution as well
themselves, to vitiate an election. Where as other written law on elections, it was
an election is conducted in such a manner fraught with irregularities or illegalities
as demonstrably violates the principles that affected the result of the election.
of the Constitution and the law, such an 22. Having analyzed the wording of section
election stands to be invalidated. 83 of the Elections Act, bearing in mind
20. While the Court agreed with the two its legislative history in Kenya and genesis
Lord Justices in the Morgan v. Simpson from the Ballot Act and also in light of
case that the two limbs (compliance with the need to keep in tune with Kenya’s
the law on elections, and irregularities transformative Constitution, the correct
that may affect the result of the election) interpretation of the section was one
should be applied disjunctively, it would that ensured that elections were a true
not take Lord Stephenson’s route that reflection of the will of the Kenyan people.
even trivial breaches of the law should Such an election must be one that meets
void an election. That was not realistic. the constitutional standards. An election
It was a global truism that no conduct such as the one at hand, has to be one that
of any election could be perfect. Even is both quantitatively and qualitatively in
though the word ‘substantially’ was not in accordance with the Constitution. It is
18
one where the winner of the presidential cause of that violence. One of the critical
contest obtains more than half of all the areas of that Commission’s focus was
votes cast in the election; and at least the integrity of vote counting, tallying
twenty-five per cent of the votes cast in and announcement of presidential
each of more than half of the counties election results. Among the significant
as stipulated in article 138(4) of the recommendations the Kriegler
Constitution. In addition, the election Commission made related to the use
which gives rise to that result must be of technology in the electoral process.
held in accordance with the principles Pursuant to those recommendations, the
of a free and fair election, which are by process of integrating technology into
secret ballot; free from intimidation; the conduct of elections was undertaken
improper influence, or corruption; and starting with the use of Biometric
administered by an independent body in Voter Registration (BVR) equipment
an impartial, neutral, efficient, accurate to register voters on a pilot basis in
and accountable manner as stipulated the run up to the 2010 referendum.
in article 81. Besides the principles in In the 2013 elections technology was
the Constitution that govern elections, applied for registration of voters, voter
section 83 of the Elections Act identification and results transmission.
required that elections be ‘conducted However, that did not work very well
in accordance with the principles laid in the 2013 general election and it was
down in that written law. The most one of the key issues that was raised in
important written law on elections was the 2013 presidential petition before
the Elections Act itself. the Supreme Court. Consequently, in
23. Having considered the opposing 2016 the Joint Parliamentary Select
positions, the contentions by the 1st Committee on matters relating to the
and 2nd Respondents ignored two bi-partisan Independent Electoral and
important factors. One, that elections Boundaries Commission(IEBC) was
were not only about numbers as many, formed, discussed the use of technology
even prominent lawyers, would like the in elections and made far-reaching
country to believe. Even in numbers, to recommendations which led, to
arrive at a mathematical solution, there amongst others, extensive amendments
is always a computational path one has to the Elections Act to provide for use
to take, as proof that the process indeed of technology and also technology
gives rise to the stated solution. Elections dedicated regulations, the Elections
are not events but processes. Elections (Technology) Regulations 2017.
are not isolated events, but are part of a 25. The changes were meant to re-align
holistic process of democratic transition several pieces of election-related
and good governance. Incidentally, legislation, with the principles of
IEBC’s own Election Manual (Source the Constitution and the electoral
Book) recognized that an election is jurisprudence that had been developed
indeed a process. There were many by the Courts. The cumulative effect of
other authorities which speak to the those changes was the establishment of
proposition that an election is a process. what was being referred to as the Kenya
Therefore the process of getting a Integrated Election Management System
voter to freely cast his vote, and more (KIEMS). Henceforth, technology
importantly to have that vote count would be deployed to the process of
on an equal basis with those of other voter registration, voter identification
voters is as important as the result of the and the transmission of results to the
election itself. Constituency and National Tallying
24. Following the 2007 post-election Centers. Regarding the voter register,
violence, the Government formed the the Court in the 2013 Raila Odinga
Independent Review Commission decision had observed that there was no
(IREC), commonly known as the single voter register but an aggregation
Kriegler Commission, to inquire into of several parts into one register. All
the conduct of the 2007 elections and the those legislative enactments had one
19
objective; to ensure that in conformity as opposed to its chairperson, upon

with the Constitution, the elections are receipt of prescribed forms containing
free, fair, transparent and credible. tabulated results for election of president
26. The terms ‘simple, accurate, verifiable, electronically transmitted to it from
secure, accountable and transparent’ the near 40,000 polling stations, was
engrafted into those provisions, were required to tally and “verify” the result.
the selfsame constitutional principles in 29. The polling station is the true locus for
articles 10, 38, 81 and 86. It was in that the free exercise of the voters’ will. The
context that the court would determine counting of the votes as elaborately set
whether, the 1st Respondent, conducted out in the Act and the Regulations, with
the presidential election in accordance its open, transparent and participatory
with the principles laid down in the character using the ballot as the primary
Constitution and the law. material, means, as it must, that the
27. Regulation 87(3)(b) provided that: count is clothed with a finality not to
“upon receipt of Form 34A from the be exposed to any risk of variation or
constituency returning officers under subversion.
sub-regulation (1), the Chairperson of 30. Neither the 1st nor the 2nd Respondent
the Commission shall tally and complete had offered any plausible response
Form 34C.” However, the 1st Respondent to the question as to whether all
had to allegedly modify Form 34C to Forms 34A had been electronically
reflect the entry of Forms 34B, which transmitted to the National Tallying
was the Form declared by the Court of Center (NTC) as required by section
Appeal to be the source document to 39 (1C) of the Elections Act. What
determine the winner of a Presidential remained uncontroverted however was
election, instead of Forms 34A. A reading the admission that as of 14th August
of the Court of Appeal decision in the 2017, three days after the declaration
Maina Kiai case showed nowhere in that of results, the 1st Respondent was not
decision where, the judges of Appeal in a position to supply the Petitioner
appeared to suggest that by affirming the with all Forms 34A. Counsel for the 1st
High Court’s decision which had declared and 2nd Respondents, by insisting that
section 39 (2) and (3) of the Elections Act the presidential results were declared
unconstitutional, the Court of Appeal, on the basis of Forms 34B, all of which
somehow for unstated reasons, lent were available, also implicitly admitted
judicial imprimatur to the 1st and 2nd that not all Forms 34A were available by
Respondent to either circumvent, or the time the 2nd Respondent declared
simply ignore the provisions of section the ‘final results’ for the election of the
39(1C) of the Elections Act. On the president.
contrary, the Appellate Court’s decision 31. Pursuant to an application by the
was an unstinting reaffirmation, if not a Petitioners, the Court issued an order
restatement of the letter and spirit of the requiring the 1st Respondent to supply
constitutional principles embodied in the Petitioners and the 3rd Respondent
articles 81, 86, and 138 (3) (c), relating to with all the scanned and transmitted
the conduct of elections. Forms 34A and 34B from all the 40,
28. With section 39(1C) of the Elections Act 883 polling stations on a read only basis
in mind, the Court of Appeal in the case with the option to copy in soft version.
of Maina Kiai decision, was categorical Had the Court’s Order been complied
that the elaborate system, the electronic with, it would have unraveled the
transmission of the already tabulated mysterious puzzle surrounding Forms
results from the polling stations, 34A. Regrettably, according to the
contained in the prescribed forms, was a information made available to Court, by
critical way of safeguarding the accuracy its appointed experts, the 1st Respondent
of the outcome of elections, and the only allowed read-only access to this
appellant or any of its officers (read 1st information without the option to copy
Respondent) could vary or even purport in soft version only two hours to the
to verify those results. The appellant, closure of Court proceedings which
20
never fully happened anyway. By that understood why those figures, which
time however, the puzzle had been counsel referred to as mere “statistics”
unraveled in the mind of the Court. that did not go into the determination
32. Failure to access or catch 3G and/ of the outcome of the results, differed.
or 4G network was not a failure of In the circumstances, bearing in mind
technology. The IEBC’s ICT officials that IEBC had the custody of the record
must have known that there were some of elections, the burden of proof shifted
areas where network was weak or to it to prove that it had complied with
totally lacking and should have made the law in the conduct of the presidential
provision for alternative transmission. election especially on the transmission
It could not have dawned on IEBC’s ICT of the presidential election results and it
officials, two days to the elections, that it failed to discharge that burden.
could not access network in some areas. 35. IEBC strenuously opposed the
Under Regulations 21, 22, and 23 of Petitioners’ application for access to
the Elections (Technology) Regulations its servers, claiming that such access
2017, IEBC was required to engage would compromise the security of the
a consortium of telecommunication data in those servers. After considering
network service providers and publish the application, the objection was
the network coverage at least 45 days overruled and the application was partly
prior to the elections. In that regard, in allowed. Though the IEBC’s claim of
one of its press briefings preceding the compromising the security of its servers
elections, IEBC assured the country was not accepted, considering the fact
that it had carefully considered every that having spent billions of taxpayers’
conceivable eventuality regarding the money IEBC should have set a robust
issue of the electronic transmission of backup system, nevertheless to assuage
the presidential election results, and those fears, a “read only access” was
categorically stated that technology granted which included copying where
was not going to fail them. IEBC the Petitioners so wished. The report
indeed affirmed that it had engaged from the Court appointed IT experts,
three internet service providers to holders of PhDs on IT and lecturers in
deal with any network challenges. The Strathmore and Kabianga Universities
IEBC’s explanation of alleged failure of respectively, showed clear reluctance on
technology in the transmission of the the part of IEBC to fully comply with the
presidential election results could not be Court’s Order of 28th August, 2017 to
therefore accepted. The so-called failure provide the information requested.
of transmission was a clear violation of 36. In summary the following are the items
the law. that were not availed to the Petitioners;
33. Among the 11, 0000 polling stations that the 3rd Respondent and the Court.
IEBC claimed were off the 3G and 4G a. Firewalls without disclosure of the
range, most parts of the Counties where software version. IBEC refused to
the polling stations fell under have fairly provide information on internal
good road network infrastructure. Even firewall configuration contending
if all of them were off the 3G and/or 4G that doing so would compromise
network range, it would take, at most, and affect the vulnerability of
a few hours for the POs to travel to their system. The Court appointed
vantage points from where they would ICT Experts disagreed with that
electronically transmit the results. That contention and said it was difficult
they failed to do that, was an inexcusable to ascertain whether or not there
contravention of section 39(1C) of the were any hacking activities;
Elections Act. b. IEBC was also required to provide
34. The understanding of the process “Certified copies of the certificates
was that the figures keyed into the of Penetration Tests” conducted
KIEMS corresponded with those on on the IEBC Election Technology
the scanned images of Forms 34A. System prior to and during the 2017
In the circumstances, it could not be election pursuant to Regulation
21
10 of the Elections (Technology) Respondent could have accessed

Regulations 2017. These were the information in the presence of
not provided. Instead IEBC the Petitioners’ agents. Partial live
issued uncertified documents and access was also only purportedly
certificates by professionals which provided on 29th August, 2017
did not conform to that Regulation; at about 3.50pm without ability
c. IEBC was also required to provide to access the logs or even view
“Specific GPRS location of each them. The exercise was therefore
KIEMS kit” used during the a complete violation of the Court
presidential election for the period Order and the access was not useful
between 5th August 2017 and to the parties or the Court.
11th August 2017. This was not 37. IEBC in particular failed to allow access to
provided. IEBC instead provided two critical areas of their servers: its logs
the GPS locations for the polling which would have proved or disproved
stations which was never ordered to the Petitioners’ claim of hacking into
be granted; the system and altering the presidential
d. Documents for allocated and non- election results and its servers with
allocated KIEMS kits procured were Forms 34A and 34B electronically
provided. However, the information transmitted from polling stations and
on whether the kits were deployed County Tallying Centers (CTCs). Those
or not was incomprehensive; were the Forms that section 39(1C)
e. The Court ordered access to specifically required to be scanned and
Technical Partnership Agreements electronically transmitted to the CTCs
for IEBC Election Technology and the NTC. In other words, the Order
System including a list of technical of scrutiny was a golden opportunity
partners, kind of access they had for IEBC to place before Court evidence
and list of APIs for exchange of data to debunk the Petitioners’ said claims.
with partners. The documents were If IEBC had nothing to hide, even
issued with the exception of the list before the Order was made, it would
of APIs. The Court appointed ICT have itself readily provided access to
Experts said full information on APIs its ICT logs and servers to disprove the
would have enabled determination Petitioners’ claims. However the IEBC
of what kind of activities may have contumaciously disobeyed the Order in
taken place; the critical areas.
f. The Court had also ordered IEBC to 38. Failure to comply with a lawful demand,
provide the Petitioners with the log leave alone a specific Court Order,
in trail of users and equipment into leaves the Court with no option but to
the IEBC servers, the log in trails of draw an adverse inference against the
users and equipment into the KIEMS party refusing to comply. In the case,
database Management systems and IEBC’s contumacious disobedience
the administrative access log into of the Court’s Order of 28th August,
the IEBC public portal between 2017 in critical areas left no option but
5th August 2017 to date (being the to accept the Petitioners’ claims that
date of the Court Order which was either IEBC’s IT system was infiltrated
on 28th August, 2017). These were and compromised and the data therein
also not provided. Instead, IEBC interfered with or IEBC’s officials
provided pre-downloaded logs in a themselves interfered with the data
hard disk whose source it refused or simply refused to accept that it had
to disclose. The IT experts agreed bungled the whole transmission system
with the Petitioners’ contention and were unable to verify the data.
that the 1st Respondent should 39. The Petitioners claimed that while
have demonstrated that the logs 15,558,038 people voted for the
emanated from IEBC servers by presidential candidates, 15,098,646
allowing all parties to have Read voted for gubernatorial candidates
Only Access. Alternatively, the 1st and 15,008,818 voted for Members of
22
Parliament (MPs) raising questions as being the primary document, became the
to the validity of the extra votes in the basis for all subsequent verifications.
presidential election. No satisfactory 42. The whole exercise of limited access
answer was given and the 1st Respondent to the 1st Respondent’s IT system
was responsible for that unexplained yet was meant to conform and verify
important issue. both the efficiency of the technology
40. The transmission of results was done and also verify the authenticity of the
in a manner inconsistent with the transmissions allegedly made to the
expectations of section 39(1C) of CTC and NTC. Non-compliance and
the Elections Act. The principles in failure, refusal or denial by IEBC to do
articles 81 and 86 of the Constitution as ordered, had to be held against it.
had the expectations of transparency, 43. The critical element under article 138
accountability, simplicity, security, (3) (c) of the Constitution was the duty
accuracy, efficiency and especially, placed upon the Commission to verify
verifiability of the electoral process. the results before declaring them. To
These terms should be understood to ensure that the results declared were the
refer to: ones recorded at the polling station. Not
g. an accurate and competent to vary, change or alter the results.
conduct of elections where 44. The duty to verify in article 138 was
ballots are properly counted and squarely placed upon the Independent
tabulated to yield correct totals and Electoral and Boundaries Commission
mathematically precise results; (the 1st Respondent). That duty ran all
h. an election with a proper and the way, from the polling station to the
verifiable record made on the constituency level and finally, to the
prescribed forms, executed by National Tallying Centre. There was
authorized election officials and no disjuncture in the performance of
published in the appropriate media; the duty to verify. It was exercised by
i. a secure election whose electoral the various agents or officers of the 1st
processes and materials used in it Respondent, that is to say, the presiding
are protected from manipulation, officer at a polling station, the returning
interference, loss and damage; officer at the constituency level, and the
j. an accountable election, whose Chair at the National Tallying Centre.
polling station, constituency and 45. The verification process at all those
national tallies together with the levels was elaborately provided for in
ballot papers used in it are capable the Elections Act and the Regulations
of being audited; and thereunder. The simultaneous electronic
k. a transparent election whose polling, transmission of results from the polling
counting and tallying processes as station to the Constituency and National
well as the announcement of results Tallying Centre, was not only intended
are open to observation by and to facilitate that verification process,
copies of election documents easily but also acted as an insurance against,
accessible to the polling agents, potential electoral fraud by eliminating
election observers, stakeholders and human intervention/intermeddling
the public and, as required by law, in the results tallying chain. This, the
a prompt publication of the polling system did, by ensuring that there was
results forms is made on the public no variance between, the declared results
portal. and the transmitted ones.
41. Verifiability must have had strong 46. In the presidential election of August
significance in the 8th August election, 8, 2017 however, the picture that
because the presiding officers were emerged, was that things did not follow
required to verify the polling station’s that elaborate, but clear constitutional
results in the presence of polling agents and legislative road map. It had been
before sending them to the CTC and established that at the time the 2nd
NTC using the KIEMS KIT. The Maina Respondent declared the final results for
Kiai decision, made it clear that Form 34A the election of the President on August
23
11, 2017, not all results as tabulated in change the results relayed to the National
Forms 34A, had been electronically and Tallying Centre from the polling stations
simultaneously transmitted from the and Constituency Tallying Centres,
polling stations, to the National Tallying under the guise of verifying.
Centres. The 2nd Respondent could not 51. Article 86 of the Constitution placed
therefore be said to have verified the upon the 1st Respondent the onerous
results before declaring them. responsibility of devising and deploying
47. The said verification could only have election systems that the voter could
been possible if, before declaring understand. The 1st Respondent must
the results, the 2nd Respondent had further be expected to provide access
checked the aggregated tallies in Forms to crucial information that could enable
34B against the scanned Forms 34A as either a candidate or a voter to cross
transmitted in accordance with section check the results declared by it with a
39 (1C) of the Elections Act. Given the view to determining, the integrity and
fact that all Forms 34 B were generated accuracy thereof. In other words, “the
from the aggregates of Forms 34A, there numbers must just add up” even where
could be no logical explanation as to Parliament found it necessary to make
why, in tallying the Forms 34B into the provision for a complementary system,
Form 34C, the primary document (Form it would not escape from the dictates
34A), was completely disregarded. of article 86 of the Constitution, hence
48. Even if one were to argue, which at any section 44A of the Elections Act.
at rate, was not the case here, that the 52. When called upon to explain why all
verification was done against the original the Forms 34A had not been scanned,
Forms 34A from all the polling stations, transmitted and published on an online
which had been manually ferried to the portal, in line with section 39 of the
tallying centre, that would still beg the Elections Act, the 1st Respondent,
question as to where the scanned forms through counsel, alluded to some form of
were, and why the manually transmitted complementary mechanism. However,
ones, arrived faster than the electronic the description of such a mechanism
ones. did not appear to meet the yardsticks of
49. The failure by the 1st Respondent to verifiability inbuilt in the Constitution
verify the results, in consultation with and section 44A of the Elections Act.
the 2nd Respondent, before the latter 53. No election is perfect, even the law
declared them, therefore went against recognizes that reality. It was however
the expectation of article 138(3)(c) of difficult to categorize the said violations
the Constitution, just as the failure of the law as “minor inadvertent
to electronically and simultaneously errors”. IEBC behaved as though the
transmit the results from all the polling provisions of sections 39, 44 and 44A
stations to the National Tallying Centre, of the Elections Act and the provisions
violated the provisions of section 39 (1C) of article 88 (5) of the Constitution
of the Elections Act. Those violations of requiring it to “…exercise its powers
the Constitution and the law, called into and perform its functions in accordance
serious doubt as to whether the said with the Constitution and the national
election could be said to have been a legislation” did not exist. IEBC failed
free expression of the will of the people to observe the mandatory provisions of
as contemplated by article 38 of the article 86 of the Constitution requiring
Constitution. it to conduct the elections in a simple,
50. The Maina Kiai case did not restrain accurate, verifiable, secure, accountable
the 1st Respondent from verifying the and transparent manner. There was
results before declaring them, or relieve no transparency or verifiability when
the former from the statutory duty of IEBC, contrary to articles 35 and 47
electronically transmitting the results. of the Constitution, worse still, in
What the 2nd Respondent was barred contumacious disobedience of the
from doing by the Court of Appeal and Court’s Order, refused to open its servers
the High Court was to vary, alter, or and logs for inspection.
24
54. The Petitioners had discharged the had to be nullified.

legal burden of proving that the 2nd 58. While the impugned election was
Respondent, declared the final results conducted in violation of relevant
for the election of the president, before constitutional principles, the same
the 1st Respondent had received all the was also alleged to have been fraught
results from Forms 34A from all the with illegalities and irregularities that
40,883 polling stations contrary to the rendered its result unverifiable and
Constitution and the applicable electoral thus indeterminate. Illegalities refer to
law. The 2nd Respondent, declared, the breach of the substance of specific law
said results solely, on the basis of Forms while irregularities denote violation of
34B, some of which were of dubious specific regulations and administrative
authenticity. The 1st Respondent in arrangements put in place.
disregard of the provisions of section 39 59. On allegations of undue influence,
(1C), of the Elections Act, either failed, bribery and voter intimidation, it was
or neglected to electronically transmit, deposed that the 3rd Respondent, Uhuru
in the prescribed form, the tabulated Kenyatta, brazenly violated section
results of an election of the president, 14 of the Elections Offences Act by
from many polling stations to the advertising and publishing in the print
National Tallying Centre. and electronic as well as on billboards,
55. No evidence had been placed to suggest achievements of his government. Section
that, the processes of voter registration, 14 of the Election Offences Act provided
voter identification, manual voting, and that no government shall publish any
vote counting were not conducted in advertisements of achievements of the
accordance with the law. As a matter of respective government either in the
fact, nobody disputed the fact that on print media, electronic media, or by
August 8, 2017, Kenyans turned out in way of banners or hoardings in public
large numbers, endured long hours on places during the election period. That
queues and peacefully cast their votes. prohibition was what article 81(e)(ii)
However, the system thereafter went referred to as ‘improper influence.’ The
opaquely awry and whether or not the rationale behind that prohibition, in the
3rd Respondent received a large number context of the case was that whatever
of votes becomes irrelevant because, achievements the current government
read together, sections 39(1C) and 83 of may have made, resulting from
the Elections Act say otherwise. expenditure of public funds, should not
56. Whereas the role of observers and their be taken advantage of by the government
interim reports were heavily relied upon as a campaign tool. However in that
by the Respondents as evidence that the regard, the 1st Petitioner had not attached
electoral process was free and fair, the any material evidence to support his
evidence before the court pointed to allegations of undue influence, bribery
the fact that hardly any of the observers and voter intimidation. That being the
interrogated the process beyond case, no determination on that issue
counting and tallying at the polling could be made for the lack of material
stations. The interim reports could not particulars.
therefore be used to authenticate the 60. The 3rd Respondent had submitted that
transmission and eventual declaration of the question whether he was allegedly
results. sponsoring the advertisement of the
57. The 2017 presidential election was government’s achievement in the print
therefore not conducted in accordance and electronic media was pending at
with the principles laid down in the the High Court and the Petitioners did
Constitution and the written law on not contest that averment. The Supreme
elections in that it was, inter alia, neither Court could not adjudicate on an issue
transparent nor verifiable. On that which was still the subject of judicial
ground alone, and on the basis of the determination at the High Court.
interpretation given to section 83 of the 61. Contrary to submissions by the 1st and
Elections Act, the Presidential election 2nd Respondents, the letter by the 2nd
25
Respondent to the EACC did not apply to a candidate of one’s choice. Therefore, in
the holder of the office of the presidency order that the offence of undue influence
in which category the 3rd Respondent can be said to have been made out within
fell. Furthermore, section 14(3) of the the meaning of section 171C of the
Election Offences Act which provided Indian Penal Code, something more than
for the Commission’s enforcement the mere act of canvassing for a candidate
powers, did not apply to persons holding must be shown to have been done by the
the office of the President. Having that offender. The act alleged as constituting
in mind and fortified by the observation undue influence must be in the nature
that the interpretation of section 14 of a pressure or tyranny on the mind
of the Election Offences Act was a live of the candidate or the voter. The mere
matter at the High Court; any allegation act of canvassing for a candidate cannot
that touched on that section could not be amount to undue influence within the
addressed. meaning of section 171C of the Indian
62. Undue influence in the context of election Penal Code.
offences was defined under section 10 64. The language used in the definition
of the Election Offences Act. Though of “undue influence” implies that an
the wording of the Indian Penal Code offence of undue influence will be held
section 171(C) was materially different to have been committed if the elector
from section 10 of the Election Offences having made up his mind to cast a vote
Act, the meaning injected into the Indian for a particular candidate does not do
Penal Code showed its applicability so because of the act of the offender,
in the Kenyan context. The Supreme and this can only be if he is under
Court of India in the consolidated the threat or fear of some adverse
cases explicitly stated that the test was consequence. Whenever any threat of
whether there was interference or an adverse consequences is given, it will
attempted interference with the free tend to divert the elector from freely
exercise of any electoral right. Similarly, exercising his electoral right by voting
section 10 of the Election Offences for the candidate chosen by him for the
Act, whose marginal note is ‘undue purpose. But, in cases where the only act
influence’, forbids any impediment of a done is for the purpose of convincing the
person’s exercise of the electoral right. voter that a particular candidate is not
In India, the electoral right of an elector, the proper candidate to whom the vote
was defined under section 171A (b) of should be given, that act cannot be held
the Indian Penal Code, as ‘the right of to be one which interferes with the free
a person to stand, or not to stand as, or exercise of the electoral, right.
to withdraw from being, a candidate 65. The test of undue influence was
or to vote or refrain from voting at an therefore, whether the 3rd Respondent’s
election.’ That was comparable to article conduct, if satisfactorily proved, created
38(3) of the Constitution of Kenya, 2010 an impression in the mind of a voter
which conferred certain political rights that adverse consequences would follow
on every citizen without any restrictions as a result of their exercise of their
including the right to vote by secret political choices. In applying that test the
ballot in an election. deposition of Dr. Kibicho who impugned
63. The Indian Courts laid down a distinction the alleged non-impartiality on the part
between mere canvassing for votes and of two Chiefs who were public officers
acts of undue influence. In doing so, the could not be ignored. Thus the 3rd
Supreme Court pronounced itself that If Respondent’s statement had to also
the mere act of canvassing in favour of be tested against the testimony of Dr.
one candidate as against another were Kibicho which evidence had not been
to amount to undue influence, the very controverted. Words alone, without
process of a democratic election shall any other demonstrable evidence
have been stifled because, the right to were not sufficient to enable the Court
canvass support for a candidate is as make a conclusive finding on the issue.
much important as the right to vote for Further, the evidence of Dr. Kibicho,
26
explaining the context within which the benefit to bring his thoughts into this
3rd Respondent uttered the said words, cause. In the circumstances, section 23
remained undisputed. Consequently, could not be found unconstitutional. The
after carefully considering the evidence, matter should be addressed in the right
the Petitioners had not proved their case proceedings in the right circumstances.
on the issue to the required standard. 69. A number of conclusions/observations
66. It was also alleged that the 3rd Respondent could be made from the scrutiny exercise
improperly influenced voters by issuing ordered by the court: Firstly, the Form
cheques to Internally Displaced Persons 34C, that was availed for scrutiny was
(IDPs) during campaign rallies. A not original. Whereas the copy availed
perusal of the attached video transcript, for scrutiny was certified as a copy
which was in the form of an interview original, no explanation was forthcoming
conducted by one of the local news to account for the whereabouts of
reporting station showed that the the original Form. Regulation 87(3)
transcript did not contain a satisfactory obligated the 2nd Respondent to tally
basis or convincing evidence to the and complete Form 34C and to sign and
effect that the 3rd Respondent acted in date the forms and make available a copy
any inappropriate manner with regard to any candidate or chief agent present.
to the release of funds to IDPs. That regulation presupposed that the
67. The 1st Petitioner’s further complaint on Chairman retained the original. The 2nd
illegalities was that the 3rd Respondent Respondent was required to avail the
engaged Cabinet Secretaries who openly original Form 34C for purposes of access
abused their position and used State and to that extent the 2nd Respondent
resources in actively soliciting votes did not.
for him. The Petitioners submitted that 70. From the report on Forms 34B, the
since Cabinet Secretaries were State Registrar outrightly made an observation
Officers, they ought to be impartial, that some of the forms were photocopies,
but that section 23 of the Leadership carbon copies and not signed. Out
and Integrity Act gave them leeway for of the 291 forms, 56 did not have the
impartiality and hence sought to have watermark feature while 31 did not bear
the section declared unconstitutional. the serial numbers. A further 5 were not
The Supreme Court may in exercise of its signed at all and 2 were only stamped by
jurisdiction interpret the Constitution the returning officers but not signed. In
and in doing so, where the need requires, addition, a further 32 Forms were not
declare an offending provision of the law signed by agents. The above incidences
to be unconstitutional. Such is a natural were singled out since they were
consequence of any legal reasoning if the incidences where the accountability
Court were to maintain its fidelity to the and transparency of the forms were in
law. However, the present scenario was question.
peculiar in the sense that, the Petitioners 71. The affidavit of Immaculate Kassait,
did not at the very first instance, through a Director of the 1st Respondent
their pleadings, indicate their intentions enumerated all the security features
to declare section 23 of the Leadership of statutory forms which differed
and Integrity Act to be unconstitutional. completely with the abundance of caution
68. The rule of the thumb has always been submission by Mr. Muite SC and the ‘not
that parties must be bound by their in the law’ argument by the IEBC. There
pleadings and especially in a case such as was a reasonable expectation that all the
this is where the Petitioner was asking the forms ought to be in a standard form
Court to address its mind to the possible and format; and though there was no
unconstitutionality of a legal provision. specific provision requiring the forms to
For proper consideration therefore, and have watermarks and serial numbers as
especially in order to do justice to both security features, there was no plausible
the parties and the greater public interest, explanation for that discrepancy more so
there was disadvantage placed upon the when it had been deponed that all forms
3rd Respondent especially who had no had those features.
27
72. The schedule to the Elections Act not stamped. 11 forms had no water
provided for a sample of the format mark while 46 of the photocopies were
of the Form 34B. As was evident from not signed. 58 forms were not stamped.
the schedule, the ‘Hand Over’ section Considering the sample size, it was
was filled when the Forms 34A were apparent that the discrepancies were
submitted to the Constituency returning widespread.
officer whereas the ‘Taking Over’ section 75. Elections are the surest way through
was filled when the Chairperson received which the people express their
the Forms 34A. Indeed Regulation sovereignty. The Constitution of Kenya,
82(1) required the presiding officer 2010 was founded upon the immutable
to physically ferry the actual results principle of the sovereign will of the
to the Constituency returning officer. people. The fact that, it is the people,
Further, Regulation 87(1) (b) required and they alone, in whom all power
the Constituency returning officer to resides; be it moral, political, or legal.
deliver to the National Tallying Centre And so they exercise such power, either
all the Forms 34A from the respective directly, or through the representatives
polling stations and the summary whom they democratically elect in free,
collation forms. Regulation 87(3)(a) went fair, transparent, and credible elections.
on to provide that, upon the receipt Therefore, whether it be about numbers,
of Form 34A from the Constituency whether it be about laws, whether it be
returning officer, the Chairperson of the about processes, an election must at
Commission would verify the results the end of the day, be a true reflection
against Forms 34A and 34B received of the will of the people, as decreed by
from the Constituency returning officer. the Constitution, through its hallowed
It could not be understood how the principles of transparency, credibility,
1st and 2nd Respondent could deny verifiability, accountability, accuracy
the receipt of the prescribed forms. and efficiency.
In any case, during the hearing of the 76. Article 38 of the Constitution provided
scrutiny application, Counsel for the inter alia, that every citizen is free to
1st Respondent submitted that the make political choices, which include the
Commission was in possession of all right to “free, fair, and regular elections,
the original Forms 34A and 34B and based on universal suffrage and the free
went ahead to suggest that, it was expression of the will of the electors”.
willing to release the same forms for That “mother principle” must be read
inspection. During the scrutiny exercise and applied together with articles 81 and
that was subsequently carried out, the 86 of the Constitution, for to read article
Commission produced majority of those 38 in a vacuum and disregard other
original forms. enabling principles, laws and practices
73. The purpose of including the attendant to elections, is to nurture a
requirement for indicating the number of mirage, an illusion of “free will”, hence
forms received by various officers was to a still-born democracy. It was also
ensure accountability and transparency. against that background that the impact
It was therefore unfortunate that, out of the irregularities that characterized
of the random sample of 4,299 Forms the presidential election would be
34A examined, a total of 189 Forms had considered.
not been filled in the hand-over section, 77. Not every irregularity, not every
whereas 287 forms had not been filled infraction of the law is enough to nullify
in the take-over section. Such kind of an election. Were it to be so, there would
scenario raised the question as to the hardly be any election in the Country,
kind of verification done, if at all, by the if not the world, that would withstand
Chairperson of the Commission. judicial scrutiny. The correct approach
74. As for Forms 34A, the sampled 4,299 therefore, was for a court of law, to not
forms reveal that 481 of them were only determine whether, the election
carbon copies, 269 were not stamped was characterized by irregularities,
while 257 of the carbon copies were but whether, those irregularities were
28
of such a nature, or such a magnitude, why were they different from the
as to have either affected the result of others? It was disturbing that after an
the election, or to have so negatively investment of tax payers’ money running
impacted the integrity of the election, into billions of shillings for the printing
that no reasonable tribunal would of election materials, the Court would
uphold it. In view of the interpretation of be left to ask itself basic fundamental
Section 83 of the Elections Act rendered, questions regarding the security of voter
that inquiry about the effect of electoral tabulation forms.
irregularities and other malpractices, 80. Form 34C, which was the instrument
became only necessary where an election in which the final result was recorded
court has concluded that the non- and declared to the public, was itself not
compliance with the law relating to that free from doubts of authenticity. That
election, did not offend the principles laid Form, as crucial as it was, bore neither
down in the Constitution or in that law. a watermark, nor serial number. It was
But even where a Court has concluded instead certified as being a true copy of
that the election was not conducted in the original. Of the 4,229 Forms 34A
accordance with the principles laid down that were scrutinized, many were not
in the Constitution and the applicable stamped, yet others, were unsigned by
electoral laws, it is good judicial practice the presiding officers, and still many
for the Court to still inquire into the more were photocopies. 5 of the Forms
potential effect of any irregularities that 34B were not signed by the returning
may have been noted upon an election. officers. It was not clear why a returning
That helps to put the agencies charged officer or a presiding officer could fail
with the responsibility of conducting or neglect to append his signature to a
elections on notice. document whose contents, he/she had
78. In the impugned presidential election, generated. The appending of a signature
one of the most glaring irregularities to a form bearing the tabulated results
that came to the fore was the deployment was the last solemn act of assurance to
by the 1st Respondent, of prescribed the voter by such officer, that he stood by
forms that either lacked or had different the “numbers” on that form.
security features. The 1st Respondent 81. Where would all the inexplicable
had submitted by way of affidavit and in irregularities that go to the very heart
open court that out of abundant caution, of electoral integrity leave the election?
it had embedded into the prescribed It is true that where the quantitative
Forms, such impenetrable security difference in numbers is negligible, the
features that it was nigh impossible for Court should not disturb an election.
anyone to tamper with them. The Court But what if the numbers are themselves
was also reminded that this was done, a product, not of the expression of the
despite it being not a requirement by the free and sovereign will of the people,
law. but of the many unanswered questions
79. The scrutiny ordered and conducted by with which the Court was faced? In
the Court however brought to the fore, such a critical process as the election
momentous disclosures. What could be of the President, isn’t quality just as
made of the fact that of the 290 Forms 34B important as quantity? In the face of all
that were used to declare the final results, those troubling questions, would the
56 of them had no security features? Court, even in the absence of a finding
Where had the security features, touted of violations of the Constitution and the
by the 1st Respondent, disappeared to? law, have confidence to lend legitimacy to
Could these critical documents be still the election? Would an election observer,
considered genuine? If not, then could having given a clean bill of health to the
they have been forgeries introduced into election on the basis of what he or she
the vote tabulation process? If so, with saw on the voting day, stand by his or
what impact to the “numbers”? If they her verdict when confronted with the
were forgeries, who introduced them imponderables? It is to the Kenyan voter,
into the system? If they were genuine, that man or woman who wakes up at 3
29
a.m on voting day, carrying with him or accountable. Although the Petitioners
her promise of the Constitution, to brave claimed that various electoral offences
the vicissitudes of nature in order to cast were committed by the officials of the
his/her vote that the Judgment had to be 1st Respondent (IEBC) no evidence
left. was placed before the court to prove
82. The illegalities and irregularities this allegation. What was in evidence
committed by the 1st Respondent were was a systemic institutional problem
of such a substantial nature that no and there was no specific finger prints
Court properly applying its mind to of individuals who may have played
the evidence and the law as well as the a role in commission of illegalities. It
administrative arrangements put in was therefore not possible to impute
place by IEBC could, in good conscience, any criminal intent or culpability on
declare that they do not matter, and that either the 1st and 2nd Respondent, or
the will of the people was expressed any other commissioner or member of
nonetheless. The electoral law was the 1st Respondent. There was also no
amended to ensure that in substance and evidence of misconduct on the part of
form, the electoral process and results the 3rd Respondent.
were simple, yet accurate and verifiable. 85. Costs generally follow the event, but
The presidential election of August 8, the present petition had brought to the
2017, did not meet that simple test and fore the need for IEBC to adhere strictly
could hence not be validated, the results to its mandate and not to exhibit the
notwithstanding. casual attitude it did in the conduct of
83. Noting the prayers sought in the petition, the impugned election and in defence of
the Court had the mandate, to invalidate the petition. It is a heavily public funded
a presidential election under article constitutional organ and to burden
140(3) of the Constitution as read with Kenyans tax payers with litigation costs
section 83 of the Elections Act, inter alia, would be a grave matter which the court
for reasons that there had been non- deemed unnecessary in the petition.
compliance with the principles in articles 86. [Obiter] “In this judgment, we have
10, 38, 81 and 86 of the Constitution settled the law as regards section 83 of
as well as in the electoral laws. One of the Elections Act, and its applicability to
the clear reliefs in article 140(3) was a presidential election. We have shown
that should a presidential election be that contrary to popular view, the results
invalidated, then a ‘fresh election’ would of an election in terms of numbers can
be held within 60 days of the Court’s be overturned if a Petitioner can prove
decision in that regard. Parties at the that the election was not conducted in
hearing of the petition did not address compliance with the principles laid down
the Court on the issue, however, and so it in the Constitution and the applicable
was not fit to delve into an interpretation electoral law. Never has the word ‘OR’
of that term in the Judgment. The term been given such a powerful meaning.
‘fresh election’ was addressed in the 2013 87. As for the IEBC, all we are saying is that,
Raila Odinga case and was the subject the constitutional mandate placed upon
of an application by the 1st interested it is a heavy yet, noble one. In conducting
party within the present petition. The the fresh election consequent upon our
application had been fixed for hearing Orders, and indeed in conducting any
on September 21, 2017 and the Court future election, IEBC must do so in
would deal with it on its merits. conformity with the Constitution, and
84. IEBC did not conduct the August 8, the law.
2017 presidential election in conformity 88. In conducting the fresh election IEBC
with the Constitution and electoral law. must put in place a complementary
Irregularities and illegalities were also system that accords with the provisions
committed in a manner inconsistent of Section 44(A) of the Elections Act. It
with the requirement that the electoral goes without saying that such a system
system ought to be inter alia simple, as held by the High Court, in the case
verifiable, efficient, accurate and of the National Super Alliance (NASA)
30
Kenya v. The Independent Electoral and in Section 39(1C) of the Elections Act,
Boundaries Commission & 2 Others, with the sole aim of ensuring a verifiable
only comes into play when technology transmission and declaration of results
fails. system, how can this Court close its eyes
89. The greatness of a nation lies not in the to an obvious near total negation of that
might of its armies important as that transparent system?
is, not in the largeness of its economy, 92. In keeping with our pronouncement
important as that is also. The greatness regarding the burden and standard
of a nation lies in its fidelity to the of proof in election petitions, we are
Constitution and strict adherence to the therefore satisfied that the Petitioners
rule of law, and above all, the fear of God. have discharged the legal burden of
The Rule of law ensures that society is proof as to squarely shift it to the 1st and
governed on the basis of rules and not the 2nd Respondent. We are also of the firm
might of force. It provides a framework view that having so shifted, the burden
for orderly and objective relationships has not in turn been discharged by the
between citizens in a country. In the 1st and 2nd Respondent as to raise
Kenyan context, this is underpinned by substantial doubt with regard to the
the Constitution. Petitioners’ case.
90. What of the argument that this Court 93. For the above reasons, let this Judgment
should not subvert the will of the people? then be read in its proper context; the
This Court is one of those to whom that electoral system in Kenya today was
sovereign power has been delegated designed to be simple and verifiable.
under article 1(3)(c) of the same Between August 8, 2017 and August
Constitution. All its powers including 11, 2017, it cannot be said to have been
that of invalidating a presidential so. The petition before us was however
election is not, self-given nor forcefully simple and to the point. It was obvious to
taken, but is donated by the people of us, that IEBC misunderstood it, hence its
Kenya. To dishonestly exercise that jumbled-up responses and submissions.
delegated power and to close our eyes Our judgment is also simple, and in
to constitutional violations would be our view clear and understandable. It
a dereliction of duty and we refuse to ought to lead IEBC to soul-searching
accept the invitation to do so however and to go back to the drawing board. If
popular the invitation may seem. not, this Court, whenever called upon
Therefore, however burdensome, let the to adjudicate on a similar dispute will
majesty of the Constitution reverberate reach the same decision if the anomalies
across the lengths and breadths of our remain the same, irrespective of who
motherland; let it bubble from our rivers the aspirants may be. Consistency and
and oceans; let it boomerang from our fidelity to the Constitution is a non-
hills and mountains; let it serenade our wavering commitment this court makes.
households from the trees; let it sprout 94. One other peripheral but important
from our institutions of learning; let it matter requires our attention; the
toll from our sanctums of prayer; and timeframe for hearing and determining
to those, who bear the responsibility of a presidential election petition in Kenya.
leadership, let it be a constant irritant. The Court is able to bear all manner of
91. Have we in executing our mandate criticisms but one would be extremely
lowered the threshold for proof in unfair; alleged inability to deliver on
presidential elections? Have we made it time. Where is that time? Between the
easy to overturn the popular will of the decision in the 2013 Raila Odinga case
people? We do not think so. No election and the present petition, it was a matter
is perfect and technology is not perfect of agreement across Kenya that 14 days
either. However, where there is a context is not enough for parties and the Court
in which the two Houses of Parliament to fully deliver on their respective
jointly prepare a technological roadmap mandates not because they cannot (in
for conduct of elections and insert a fact they all have) but because there may
clear and simple technological process be the need to conduct exercises such
31
as a recount of votes or scrutiny which of their case on apprehensions as to

require substantial amounts of time. Yet the perfect security of the transmission
the Legislature ignored pleas to rethink system. They claimed an improper
the timeframe. It is time they did so. The tallying of votes from different polling
reasons for doing so are obvious and stations, though that was denied, on
need no extrapolation here.” the basis of specific evidence, and
exhibits showing the contrary. They
Petition allowed.
further alleged improper conduct
(i) A declaration issued that the during election, on the part of certain
Presidential Election held on 8th government officials, said to have unduly
August, 2017 was not conducted in benefited the 3rd Respondent’s electoral
accordance with the Constitution platform – but those attributions to the
and the applicable law rendering the 3rd Respondent of improper influence,
declared result invalid, null and void; intimidation and corruption, were not
(ii) A declaration issued that the just unsubstantiated, but also failed
irregularities and illegalities in the to meet the high standards of proof
Presidential election of 8th August, required for criminal charges.
2017 were substantial and significant 3. The Petitioners asserted, in broad terms,
that they affected the integrity that the 1st Respondent, in the conduct
of the election, the results not- of elections, did not abide by the terms
withstanding. of article 86 of the Constitution, which
(iii) A declaration issued that the 3rd required elections to be conducted in
Respondent was not validly declared a manner that was simple, accurate,
as the President elect and that the verifiable, secure, accountable and
declaration is invalid, null and void; transparent. Yet the use of the manual
(iv) An Order issued directing the 1st ballot paper would clearly meet such
Respondent to organize and conduct conditions: the voter had no difficulty in
a fresh Presidential Election in strict marking it; its reality and visibility was
conformity with the Constitution not in doubt; it was verifiable, as a check
and the applicable election laws so readily revealed the voter’s exercise of
within 60 days of the determination his or her right of choice; it was secure; it
of 1st September 2017 under article was transparent; it was accountable.
140(3) of the Constitution. 4. The votes cast had been announced at
(v) Each party to bear its own costs. the polling stations, where they were
tabulated and results announced. From
that initial ascertainment of the voting
Dissenting opinion of J B Ojwang, SCJ: situation, the results were collated at the
1. The objective merits of the case must be Constituency Tallying Centre (CTC),
drawn from the foundation of fact. Fact is and announced at that level. The 1st
defined as something that actually exists; Respondent thereafter provided the
an aspect of reality. Therefore, fact is as Forms 34A from all polling stations;
reliable as the concrete foundations of a Forms 34B from Constituency Tallying
skyscraper; and it is to be counted upon Centres; and Forms 34C at the National
as a basis of objectivity and truth. The Tallying Centre (NTC) – which was
practice of law and more particularly, signed by all the Presidential election
the motions of the judicial process via agents, save for the Petitioners’ agent.
the minds and hands of Judges – society’s Thus, from the evidence on record, the
trustees for justice – are invariably claim of non-compliance with the terms
lodged upon the pillars of fact, being of article 86 of the Constitution could
proffered through evidence. not stand.
2. From the evidence, the Petitioners 5. Judges entertaining the competing
did not seek an ascertainment of the claims of parties, constantly have to
true number of votes cast for the 1st form an opinion, and, from objective
Petitioner and for the 3rd Respondent. criteria and conviction, eliminate the
The Petitioners had focused the burden credible from the incredible, the truth
32
from the untruth. More substantial and Courts, was under obligation to promote
persuasive evidence had emanated from the values that underlay an open and
the Respondents’ side. The Respondents’ democratic society based on human
factual accounts were firm and gripping. dignity, equality, equity and freedom.
They were credible, and represented the The Supreme Court, in the course of
substantial truth. However, no account performing its safeguarded interpretive
of equal strength was beckoning from mandate, was under obligation to be
the Petitioners. guided by the principles; that justice
6. On facts conveyed through evidence, in should be administered without undue
support of the Petitioners’ case, they were regard to procedural technicalities, and
on weak grounds, as compared to the that the purpose and principles of the
Respondents. In establishing the merits Constitution should be protected and
of their case, the Petitioners had both promoted.
the ultimate legal burden of proof, and 10. The Constitution enjoined all Courts,
the shifting evidential burdens falling in the exercise of their interpretive
upon them. They did not discharge even mandate, to adhere to certain well-
the early evidential burden – the effect defined paths:
being, in the end, that they made no valid (a) a manner that promotes the
case against the Respondents. Constitution’s purposes, values and
7. The Petitioners’ claims as to the conduct principles;
and management of the Presidential (b) a manner that advances the
elections by the 1st Respondent invoked rule of law, the human rights and
the question as to the 1st Respondent’s fundamental freedoms in the Bill of
compliance with the law in every detail, Rights;
though without necessarily adverting (c) a manner that contributes to
to the objective facts, as borne by the good governance.
evidence. The Court had to consider The foregoing prescriptions, in the
whether such contentions should be a context of the exercise of the people’s
basis for annulling the outcome of the electoral rights as took place on August
Presidential election held on August 8, 8, 2017, were the firm foundation upon
2017. which the dissent opinion was founded
8. The Constitution of Kenya, 2010, which from the majority opinion, in the critical
represented the people’s much laboured election petition. The majority decision
initiatives to find a pacific, rational had not only done short shrift to the
and humane regulatory structure for governing terms of the Constitution, but
governance, bore certain principles, and also failed to adhere to the clear path of
it safeguarded certain rights and values in the law which had evolved, including the
unambiguous terms. It safeguarded the Supreme Court’s precedents on electoral
rule of law, democracy, participation of law.
the people and political rights, in detailed 11. Just as with the Constitution itself,
terms which included the provision so with the regulatory set of norms,
that every adult citizen had the right, including the statutes and regulations:
without unreasonable restrictions, to they all fell to the interpretive mandate of
vote by secret ballot in any election; and the Courts. That fact, on the plane of legal
to be a candidate for public office, and, scholarship, ought to be apprehended
if elected, to hold office. Such sacrosanct as the inherent common law chain that
safeguards had to be so interpreted as to ran through the motions of judicialism
accord them true operational meaning. in Kenya, as in so many other countries
The same Constitution entrusted the of the common law world. The long-
interpretive mandate to the Courts, established rationales of the judicial
to which, for the faithful discharge of method still remain, and they ordained
the task, the voters had entrusted their the espousal of the doctrine of precedent
adjudicative sovereignty. – a universal concept which, was
9. Under article 20(4)(a) of the Constitution, expressly replicated in the Constitution
the Supreme Court, just like the other of Kenya, 2010.
33
12. Case law, the law as interpreted and Court to determine who occupied the
applied by Judges, on the recorded Presidential office; save that the Court,
merits of each matter, has forever been as the ultimate judicial forum entrusted
the cornerstone of the common law. It is under the Supreme Court Act, 2011 with
precisely the common law’s focused and the obligation to assert the supremacy
authentic appraisal of the facts of each of the Constitution and the sovereignty
case, that makes it ever so compelling, of the people of Kenya, should safeguard
as a defining strand in the judicial the electoral process and ensure that
contribution to progressive, modern individuals acceded to power in the
governance in conditions of democracy. Presidential office, only in compliance
13. The challenges of adjudication dictate with the law regarding elections. The
that, the gains of the past, authoritative foregoing principle, in the Supreme
interpretation by a discerning and Court’s perception, dictated that even
responsible Court, be perceived though the Court must uphold the clear
as representing a precious juristic popular, electoral choice, it would hold
civilization; and these are for keeps, as in reserve the authority, legitimacy and
a reference-point for the conscientious readiness to pronounce on the validity of
and effective resolution of later disputes. the occupancy of the Presidential office,
14. The judicial approach in the sphere of in case there was any major breach of the
electoral law is obviously inseparable electoral law. Such guiding principles
from the Constitution’s values and were clear enough, were attended with
the principles of democracy. It thus special merit and they represented the
behooves the Court to pay due deference vital backdrop to Kenya’s electoral law.
to the fundamentals of the sets of cases 17. The precedent-setting decision was
that have, in the last several years, been distinctly endorsed by subsequent
determined by the Supreme Court, electoral dispute cases: and it must be
on the subject of elections – including regarded as the pillar of the scheme
Presidential elections. Such is, quite of electoral law in Kenya – founded
conclusively, the most dependable upon a beneficent interpretation of the
course of the law that Kenya’s lawyers Constitution, and of the whole body of
should engage, in the first place. electoral law. The point was consistent
15. In Raila Odinga & 2 others v Independent with the comparative adjudicatory
Electoral and Boundaries Commission & 3 experience in election matters.
others [2013] eKLR, the Court took into 18. The Supreme Court clearly defined the
account the nature of the governance operative electoral law, on the basis of
mandate under the Constitution, and, in the Raila Odinga petition of 2013, in the
response to a challenge to the integrity of subsequent petitions. The Court was
the Presidential election, laid down a set scrupulously affirming the synchrony of
of guiding parameters. The office of the two express edicts of the Constitution
President is the focal point of political of Kenya, 2010: the first defining the
leadership in a democratic system, and sovereignty of the people, and the second
is constituted strictly on the basis of delimiting the judicial authority. By
majoritarian expression. The whole article 1(3), the people’s sovereign power
national population has a clear interest was partly delegated to the Judiciary
in the occupancy of that office which, and independent tribunals; while article
they themselves renew from time to 159(1), which constituted the judicial
time through the popular vote. Flowing authority was derived from the people
from the crucial majoritarian factor in and vested in, and should be exercised by
the filling of the primary office of the the courts and tribunals established by
Executive branch, the Supreme Court, or under the Constitution.
in that case, defined its orientation as 19. The general guiding path for the disposal
regards the resolution of an electoral of electoral disputes, such as the instant
dispute, such as the instant case before one, is by the design of the general
the Court. principles of the electoral system, and
16. As a basic principle, it was not for the of voting, in articles 81 and 86 of the
34
Constitution, it was envisaged that no should lead to its annulment. The Court
electoral malpractice or impropriety (minority) was constrained to propose
would occur that impaired the conduct that scheme as a proper agenda for the
of elections. That was the basis for the reform of Kenya’s electoral law. Such
public expectation that elections are legal reform would need to institute all
valid until the contrary was shown. appropriate security back-ups around
20. A consideration of the merits of an the physical records, and would ensure
electoral petition such as the instant one, the establishment of safety-nets around
takes one straight back to the evidence the votes cast.
tendered. There is an inseparable link 24. The Constitution, while safeguarding the
between constitutional principle, and Judiciary’s adjudicatory space, entrusts
the pillars of evidence. Since, the petition certain governance-spaces to other
herein failed on the pillars of evidence, agencies – primarily the Legislature and
it was clear that the majority decision the Executive: and that is the basis for
lacked validity from the standpoint of the constitutional principle, separation
governing principles. of powers – a principle the validity of
21. Evidence is the bearer of tell-tale signs which, in the Kenyan constitutional
of electoral victory, or of electoral order, has not ever been seriously
defeat. The physical form of the ballot is contested. The Judiciary is the trustee of
directly visible, and is readily subjected the people’s sovereign power with regard
to the test of simplicity, accuracy, to the interpretation and application of
verifiability, security, accountability and all the terms of the Constitution, and
transparency. The physical evidence, of all other law. Clearly, a substantial
quite clearly, is the natural starting point initiative in the motions of the entire
in ascertaining who has won an election: sphere of law, legality and jurisprudence,
and hence the majority Judgment would has been reserved to the Courts.
have been expected to begin from a 25. Unlike the Judiciary, the work-orbit of
foundation of numerical assessment, which was lined up with laws, principles
before invoking any other parameters. and jurisprudential yardsticks, both the
For such other elements are essentially Legislature and the Executive in view of
subjective, and are inherently destined their electoral and policy foundations,
to compromise the sovereign will of the may quite properly be described as
voters which the Constitution expressly political agencies. They related to the
safeguarded. largest number of Kenyan people,
22. Only from such a foundation of the in a close and direct proximity; they
physical vote-count, does one secure influenced and were influenced by, the
a proper viewpoint for the other momentary concerns which, therefore,
dimensions of the electoral process, justified the conception and espousal
including the credibility of the entire of policy and politics conceived and
operation. Indeed, in view of the relative executed within short time-frames.
strength of the evidence emanating That was in stark contrast with the
from the two sides, the only objective relationship between the ordinary
conclusion would have been that, within citizen, and the Courts of law: and if the
the measure of the possible, the conduct Courts overlooked that reality, it would
of the election by the 1st Respondent constitute a groundswell for failure
was entirely credible. of judicial responses in line with the
23. The emerging principle, regarding the professional, juristic remit.
initiation of claims by way of election 26. The prolonged history of judicialism, in
petitions, is that all proof should all democratic countries, demonstrates
commence from the foundation of that the proper role of the Courts has
the physical ascertainment of voting been professional, judicial, and founded
records. All other claims then, must upon cardinal principles which draw
revolve around that pillar, and must lines of correctness and propriety in
establish that some gross impropriety situations of dispute, so as to secure a
have affected the electoral process, and certain optimum level of safeguards for
35
the rights of the citizen. Beyond that level taken leave of the juristic obligation to
of safeguard and fulfilment, it falls to the interpret the terms of the articles of the
political agencies to pursue constantly, Constitution invoked by the Petitioners;
such policy stands as would satisfy, and the obligation to break them down, so
give fulfilment to the national populace. as to ascertain the discrete demands of
27. On the principles of institutional the law; the obligation to consider the
disposition, it follows that it falls not pertinence of the specific statements of
to the Court to make undue haste in evidence from the Petitioners, such as
assuming the policy mantle; a stampede would answer to the constitutional and
is destined not only to disrupt the legal principles invoked.
delicate institutional balances, but to 30. The majority departed, as it would seem,
weaken the reliable jurisprudential from the placid frame of the juridical
bedrock, which assures the citizens of setting, and assumed direct responsibility
ultimate governance safety-net. for the immediate calls of policy or
28. The majority on the instant petition had politics – by altering the design of
made a precarious move that was destined momentary, popular inclinations which
to prove detrimental to the dependable were, by the terms of the Constitution,
setting of relations among essential legitimate in all respects. The damage
governance entities – to the detriment such as may flow from such a deportment,
of the rights and legitimate expectations was not yet plain to all, as was quite clear
of the citizen. Such a determination was from common perceptions recorded in
in clear departure from the state of the the media, ever since the delivery of the
evidence. As already indicated herein, majority Judgment.
the Petitioners’ case rested on just one 31. The general perception associated the
dimension of the electoral process majority Judgment with an overtly
– electronic transmission of results. political inclination. That was the
Moreover, the bulk of the assertions Judgment’s obvious departure from the
made as regards transmission, was just professional plane of jurisprudence,
that, contentions, with only limited as the proper platform of the judicial
testimonial ingredient: it was hardly arm of the State. By the magic jolt of
evidence. On the other hand, evidence September 1, 2017, general political
in the true sense, a set of probative history would have been made, even
facts, was what came forth from the though that represented a departure
Respondents: and its tenor and effect was from the jurisprudence of democratic
that, there were only limited instances systems, which so much cherished the
of failure of results-transmission; only separation of powers, and which so
limited cases of irregularity in vote- studiously committed the Judiciary to
addition and tabulation, not affecting the the professional task of line-drawing,
ultimate compilation and summation; to ensure the sustenance of regular
the lawful complementary device was safeguards of the Constitution and the
put in service, in cases of failure in the law, for all.
transmission process; all the physical 32. In future inquiries, it may be established
voting records were available, and that the law, as advanced by its interpreters
indeed, had been timeously availed to and scholars, has its anchorage on the
the Supreme Court Registry, and could adjectival plane, from which it addresses
have been re-counted, to confirm that the primary motions of social, economic
the 3rd Respondent had been properly and political activity. The law stands to
declared as the President-elect. Thus, be formulated, molded, interpreted and
on basic elements of trial, the essence of applied, not for its own sake and in its
the burden of proof was undischarged; own cause, but in relation to the said
and it was, in effect, a reversal of the primary motions, which preoccupies
conventional process of judicial inquiry citizens and communities. Thus, in the
and determination – making a finding in instant case, the electoral process had
favour of the Petitioners. taken place, and its motions had to be
29. The majority would appear to have matched to the law as interpreted. By the
36
interpretive scheme of the law, it did not contribution of these judges and law
stand the test of rationality or efficacy, scholars is to light up the orbit of
to merely allege some unspecified jurisprudence, as a dedicated sphere of
impropriety in the electoral process. thought, learning and preoccupation,
33. The relevant clause of the Constitution that secures the requisite motions of the
must be taken through an analytical different spheres of human activity, while
process, and subjected to definite affirming the perceptions of integrity
categorizations which crystalized the and propriety. Such is the jurisprudential
specific concepts and elements said to context in which I have considered the
have been violated. By that criterion, petition herein. The majority decision,
most of the contentions of the Petitioners in effect, holds that the Court may,
in the instant case, on account of their quite directly, engage the course of
broad generality, would not stand. national history – through a precipitate
The interpretive task, as it related to assumption of recurrent policy-making
the adjectival essence of the law, was or political inclinations and mandates.
inherently professional – and was In my considered opinion, judges,
reflected in the concept of jurisprudence, where the making of history devolves
which dealt with thought about law. to them, should focus their attention in
34. The Court, in the normal performance the first place, upon the intellectual and
of its role under the Constitution, is jurisprudential domain – rather than
engaged in the specialized process of upon the workaday motions of general
jurisprudence. It follows that the more policy and politics which devolve to the
immediate, urgent and primary motions citizens themselves, and to the political
of basic policy-making, inherently agencies of state.’’
devolves to the political arms of the Petition would have been dismissed with costs.
State, rather than the more specialized
entity which is the Judiciary. Held
35. [Obiter] ‘‘The Judgment, apart from the
1. The Supreme Court is, the first
occasion it profferes for a reflection on
original, exclusive and final resort
the law relating to elections, is a basis for
for any party challenging the
a rethink on law as a concept, and as a
election of any person to the Office
professional engagement, defined in a
of the President. It determines
regulatory framework applicable to the
presidential election petitions to the
citizens’ primary undertakings. From
exclusion of all other Courts. This
such a platform, it emerges that the law’s
jurisdiction is also limited in time.
design in the hands of the judge, the
The Constitution required one to
lawyer and the scholar, restes in unity
petition quickly and particularly.
with the fundamentals of constitutional
That restriction, on extent and time,
governance – an important element
is not without basis. The parties
of which is the independence of the
have to present a clear, concise case
judiciary. On the basis of this principle,
supported by cogent evidence. The
it is to be recognized that the judge’s
jurisdiction even though limited
proper mandate lies several removes
in time and scope, revolves around
from the citizen’s momentary policy
critical constitutional questions. The
and political desires and expectations –
requirement for particularity was
which generally devolves to the state’s
therefore important to ensure that
political agencies. By this perception,
the case presented before the Court
the judge’s proper remit has its focus
was properly proved in line with the
upon professional engagement, founded
set parameters of the burden and
upon objective scenarios, or criteria.
standard of proof.
Such a perception of law and legal
process, in retrospect, will be found to 2. The Supreme Court in discharging
be in conformity with the analytical its mandate as an election Court,
schemes that mark the dedicated works remains the precedent-setting forum
of great jurists of the past. The special in the country and its decisions have
37
to be carefully analysed to ensure that of the Elections Act, 2011 expressed

a jurisprudential crisis or confusion that among the powers of an election
does not ensue. Were that to happen, Court in exercise of its jurisdiction
the Court would have failed the was: summoning and swearing in
Constitution and the people. witnesses in the same manner, or as
nearly as circumstance admitted, as
3. The Constitution is Kenya‘s guiding
in a trial by a Court in exercise of its
Order. It has organized Kenya‘s
civil jurisdiction. As per Article 163
governance character and infuses
(3)(a), the proceedings before the
accountable governance, public
Supreme Court, although regulated
service and responsible citizenship.
by the Supreme Court Act, 2012 and
The Judiciary has the enviable, but
the attendant Presidential Election
extremely difficult and rewarding
Petition Rules, 2017allowed reliance
duty of giving the Constitution
on affidavit evidence. In order for
comprehensible interpretation that
that evidence to bear cogent value, it
is stable, consistent, predictable,
had to meet the demands of proof.
certain and true to the sovereignty
of the people. Undergirding this 6. The Supreme Court‘s role in exercise
sovereignty is the ability of every of its exclusive original jurisdiction
Kenyan to enjoy his/her full human- ought to be thorough in fact-
character guaranteed by an elaborate finding and interpretation of the
charter on rights. A determination Constitution and the law. In cases
of a dispute akin to the one that was of factual prerequisite such as the
presented before the Supreme Court petition, interpretation of the law
could not therefore be mechanically devoid of complete and exhaustive
disposed of without paying due factual examination is by itself,
regard not just to the letter or an insufficient basis upon which
spirit but also the conception of the to make the final determination
Constitution itself. At the core of the contemplated under article 140 (2)
Constitution is sovereign will, at the of the Constitution. The evidence
soul of sovereign will are the people adduced has to be clear to show that
and central to the people are their what is declared is not the result.
rights.
7. Electoral processes have assumed a
4. An election cause is a right- fair presumption of correctness. To
centric cause. At the heart of a rebut the presumption requires proof
petition challenging the results of to a high degree that the resulting
a presidential election is the right declaration is not trustworthy.
to vote in free and fair elections. That is drawn from the democratic
This right is at the epicenter of legitimacy accorded to elections
Kenya‘s democratic character as a by the Constitution. The test of
Republican state. Interpretation and invalidating an election has to be a
application of the Constitutional clear one. A new election ought to
provisions touching on elections has be conducted only when voters have
to therefore be read holistically with been completely prevented from
each provision reinforcing the other. accurately registering their intended
That approach has been consistently preference in numbers sufficient to
applied by other Courts in the affect the outcome. A determination
region and embedded in the theory to hold a fresh election in terms
of constitutional interpretation in of article 140(3) should only be
Kenya’s own jurisdiction. made if the following questions are
considered, analysed and determined
5. Evidence is the epicenter of any trial.
conclusively:
The nature of a presidential election
petition does not displace the basis i. Was the final outcome of the
of the law of evidence outlined in election the result of fraud,
the Law of Evidence Act, section 80 mistake or omission which
38
precluded the certified vote total 10. In interpreting and applying any
from correctly aggregating all provision of the Constitution, the
voters independent, non-coerced Elections Act and Regulations,
and non-procured preferences? the Supreme Court must adopt an
ii. Is the outcome incapable of being interpretation that promotes the
trusted to reflect the will of the grundnorm in article 1 and the right
people? to vote in article 38.
iii. Can a reliable outcome be
11. Articles 81 and 86 of the Constitution
determined in a manner other
reinforced the right to vote elaborated
than holding a fresh election?
under article 38 of the Constitution.
8. The right to vote in free and Those constitutional provisions had
fair elections is violated when a to therefore be applied to the core
Court, without comprehensive right and not vice versa. Articles 81
understanding and analyzing of the and 86 were to be facilitative of the
evidence displaces the electorate by fundamental rights under article 38,
halting an election and deciding the in addition to other provisions of the
outcome itself. An election, unless Constitution. In fact, there were many
clearly proven to have been conducted other articles of the Constitution,
in gross violation of the Constitution Legislation and Regulations whose
and the law, affecting the ultimate purpose was intended to give effect to,
outcome, must never be taken away facilitate and support the right to vote
from the voters. The electorate, by as provided for under article 38. In
dint of article 1 of the Constitution the application and implementation
are entitled to be represented by of those provisions, the centrality of
men and women of their choice. article 38 as the primary purpose for
In resolving electoral disputes, the their existence must never be lost.
Judiciary must set upon that duty as
12. A reading of the majority decision
a judicial and not a political actor. In
appeared to presume that the only test
so doing, its guiding force must be
for ascertaining the credibility of the
proper exercise of judicial authority
election process, or more correctly for
granted under article 159 of the
assessing any violation of the rights
Constitution. It must consider rights
under article 38, lay in articles 81 and
not form.
86. That was not the case. Articles 82
9. The Majority based their decision on and 83 also went to the specifics of
an interpretation of section 83 of the the electoral process that supported
Elections Act and in doing so they the right under article 38. Article 82
had read-in the provisions of articles and 83 addressed the registration
81 and 86 of the Constitution. They of voters and 83 underlined the
stated that the electoral process had requirements of the voting exercise
not met the requirements as listed in itself as simple, accurate, and taking
those articles. That was a narrow and into account those with special needs.
restrictive interpretation of the law. Article 83(3) provided clearly that
The Majority in doing so, limited administrative arrangements for the
itself to operational and aspirational registration of voters and the conduct
constitutional principles but failed of elections had to be designed to
to address the substratum of the facilitate and would not deny, an
issue at hand, the grand norm of the eligible citizen the rights to vote or
Constitution, the sovereignty of the stand for election. The upshot being
people and the centrality of the people that the test for assessing a violation
in the entire architecture of the 2010 claim under article 38 had to be more
Constitution, but secondly used a comprehensive than the aspirational
restrictive test in assessing whether a guidelines set under articles 81 and
claim that the right to vote had been 86. Cherry-picking constitutional
violated in any way had been made. provisions to determine a right-
39
centric cause on the basis of formal leaders in Parliament. That plebiscite

considerations the choice of form protection in itself placed the Bill of
over rights undermined a purposive Rights higher in the pecking order
approach to the interpretation and of competing provisions in the
application of the Constitution. Constitution. The principle therefore
13. The Constitution in article 259 (1) should complement the right not vice
clearly displayed the framework versa.
of applicable principles while 15. The principles in article 81 and 86
interpreting the Constitution. could not trump the fundamental
Further the Constitution provided rights as provided for under article
under article 20(3) (a) and (b) that in 38 and certainly they could not
applying a provision of the Bill of undermine the provisions of article
Rights, a Court had to develop the law 1 on the sovereignty of the people.
to the extent that it did not give effect Further they ought not compete with
to a right or fundamental freedom and all international treaties that provide
adopt the interpretation that most and protect the right to vote and
favored the enforcement of a right or to which Kenya is a signatory, and
fundamental freedom. The Majority which are part and parcel of Kenya’s
in the petition had not given effect constitutional order under article 2.
to the people‘s right to franchise and 16. Fundamental rights constitute the
had not interpreted the Constitution foundation of any Constitution
broadly and in a manner that most and any accompanying values and
favored its enforcement. The case for principles are to be complementary
the advancement of the Bill of Rights and not to detract from the
had to therefore be at the forefront of Constitution. The rights in article 38
any judicial determination under the remained central to any election cause
Constitution of Kenya 2010. and it was a claim of the violation of
14. Even if there could have been a those rights that ought to take center-
perception that a competing rights stage in such a cause and not the form
situation existed between article that accompanied it in the periphery.
38 and 81 and 86 there had to be 17. The collectivity and interlocking
a balancing and an application of nature of constitutional provisions in
proportionality to effect a judicial the scheme of rights, values, principles
outcome that serves the dictates and administrative directives were
of the Constitution. One had to infused into the Elections Act and
recognize that not all claims would Regulations and in determining
be equal before the law. Some claims claims of commission or omission
are afforded a higher legal status and in electoral disputes, a Court had to
greater protection than others. While consider:
there are many situations in which (a) The nature of the commission or
rights, principles, and values could omission, in general.
seem to conflict or compete, when (b) The source of such omission or
evaluating situations of competing commission.
rights, human rights, especially those (c) Foreseeability and mitigation, i.e.
provided in a Bill of Rights would could the commission or omission
usually hold a higher status than be foretold were there to be steps
principles and values. This rationale to avert it.?
is underlined by the architecture of (d) The effect of the commission or
Kenya’s Constitution, which actually omission on a right, a duty or the
ring-fenced the Bill of Rights from consequence of a duty thereof
amendment which could have been such as effect upon the result of an
made only through referendum election.
by the people of Kenya unlike the (e) The effect of the commission or
principles in article 81 and 86, omission on the individual and the
which could be amended by elected collective
40
(f) Possible remedies and directions. General principles of the Electoral

18. Article 86 provided a strict System and the interlocking
quantitative language regulating constitutional provisions, including
voting at an election. The article article 81 were engaged in an exercise
required the voting method employed of sovereign guardianship. Therefore,
to be simple, accurate, verifiable, the Supreme Court by dint of its
secure, accountable and transparent. Jurisdiction was the final verifying
The Petitioners’ claim was that the agency, if called upon to do so, in a
results from the polling stations, Presidential election petition. That
the Constituency Tallying Centres duty was enabled by the Supreme
could not be verified by their agents Court‘s inherent powers, as an
at the National Tallying Centre. election court, to Order:
The process of verification was not (a) scrutiny
a two-step process. Verification (b) recount
in a Presidential election was a (c) re-tally
continuous process traceable from (d) discovery of documents
the date of registration of voters to (e) inspection of ballots.
the determination of a Presidential (f) Orders that facilitate the Court to
election petition in an election court. establish the people‘s sovereign will.
In other words, the plurality of 21. The Court had to give full weight
persons engaged in the conduct of to the constitutional commitment
an election, including the ultimate to free and fair elections and the
determination of that election‘s safeguard it provided of the right
validity, were all agents of verification and ability of all who so wish to offer
in ascertaining the credibility of an themselves for election to public
election. To examine the integrity of office. It was essential to hold the
the election, the election Court was IEBC to the high standards that its
obliged to consider all the relevant constitutional duties imposed upon it.
steps of the verification process. It was insufficient for the Court to say
19. Section 6 of the Elections Act that it had doubted, or had a feeling
mandated the Commission to avail of disquiet, or was uncomfortable
the register of voters to be inspected about the freedom and fairness of
by the public at all times for purposes the election. It had to be satisfied on
of rectifying the particulars therein. all the evidence placed before it that
Verification of one‘s registration there were real not speculative or
details, including biometric data, was imaginary grounds for concluding
therefore a critical part of verification that the elections were not free and
essential to the conduct of an election fair.
and enjoyment of the right to vote. 22. The preservation of election material
The Commission was also mandated for a period of three years was
to open the Register for inspection also an enabler of the verification
by the public, ninety days from process. In cases where a Court was
the date of the notice of a general in grave doubt as to the outcome of
election. That assured the public of the election, as the majority in the
the correctness of the registration case decided they were, the ballots
details entered into the register and existed to enable a final inspection/
guaranteed certain key components verification process by an election
of the right to vote under article 38. court. The people speak through the
That process was undertaken in the ballot and the ballots, once marked
months of May and June, 2017. and cast, in turn, speak for themselves
20. Kenya‘s electoral system was anonymous of the voter, preserving
instituted on the basis of multi-party the principle of secrecy under article
democracy founded on the National 38 (3)(b) of the Constitution.
Values and Principles outlined under 23. Verification is an exercise that
article 10 of the Constitution. The comprises the entire electoral process
41
commencing from registration electoral process was conducted in

of voters, inspection of the voters accordance with the directions of
register, verification of registration, the Court of Appeal in the Maina
verification of an elector‘s details Kiai case. Processes that had been
where the electronic identification put in place before the determination
fails, audit of the Register, by the Court of Appeal declaring
identification of voters, presence section 39(2) and (3) of the Elections
of candidates, agents, accredited Act, 2011 and Regulation 87 (2)(c)
observers and media, the process unconstitutional were adjusted to:
of counting and the limited right of (a) eliminate “provisional
recount, signing the declaration forms results” and
and the entitlement of candidates
or agents to a copy, displaying the (b) adjust Form 34C to reflect
declaration of results for access by a collation of Forms 34B from
the public, sealing of ballot boxes and the Constituency Returning
handing over of election materials, Officers who had verified
the tallying process and the right to and tabulated the final results
challenge the declaration of results in from the polling stations in
an election Court. All these processes Forms 34A.
activated several inbuilt principles The declaration by the 2nd
of the electoral system under article Respondent of the results of the
81 of the Constitution. They also election per County was in keeping
provided an opportunity for electoral with the constitutional requirement
quality assurance. The hierarchy was that the candidate declared elected
that any shortfalls in the preceding as President received at least twenty-
process could be detected in a five per cent of the votes cast in each
consequent process forming a basis of more than half of the Counties.
for a pre-election or post-election 26. The Maina Kiai decision, delivered
dispute. on June 23, 2017, 35 days prior to the
24. A proper test for verification of conduct of the Presidential election
an electoral process must always in August, 2017, was definitive of
prioritize the primary instrument for the status of the law at that time. As
declaration of the result or outcome such, the 1st and 2nd Respondent‘s
of the voters’ choice. The voter is adherence to those guidelines was
identified at the Polling station, he an answer to the duty in article 10
votes at the polling station, ballots of the Constitution, binding all State
are counted at the polling station. Organs and State Officers to the
The agents, candidates, observers national values and principles, in
are allowed access into the polling the case, the rule of law, whenever
stations to verify the inner sanctum any of them such as the 1st and 2nd
of the voice of the electorate, the Respondents applied or interpreted
altar of the voter‘s choice. What the Constitution, enacts, applies
happens there is what determines the or interprets any law; or makes or
parameters of verification. Any doubt implements public policy decisions.
as to the credibility or integrity of The only challenge was that the
the election has to be tested against system of data transmission from
the various layers of verification, the polling station to the National
including the election material in the Tallying Centre had already been set
custody of the Returning Officer. A up.
single want of form in the elaborate 27. The Maina Kiai’ case, though in many
scheme of verification could not be respects was similar to the Joho’s case,
a basis for nullifying a Presidential Supreme Court Petition No 10 of 2013;
Election. [2013] eKLR was a play of different
25. The 1st and 2nd Respondents legal and constitutional provisions.
satisfactorily demonstrated that the While Joho Case interrogated the
42
plurality of declaration processes in the declaration of the winner of

for a gubernatorial election, a three- an election. Article 138 (3) (c) of the
tier election with no requirement Constitution is the pace setter of the
of a County or National threshold, declaration process. It calls on the
the Maina Kiai case addressed itself Commission to tally and verify the
to the declaration processes in a count before declaring the result.
Presidential election; a two-tier That formula was in terms of article
election process under article 138 (3) 86(a), simple, verifiable, transparent
(c) with a mandatory National and and accountable. Article 138 (3) (c)
County threshold under article 138 eliminated the need for the polling
(4) (a) and (b), and a defined mode results in a presidential election
of declaration under article 138 (10) to be tallied at the constituency
(a). Noteworthy is that these two tallying centre before being declared.
cases were in different Electoral Law Presidential election results were
Amendment periods. The foregoing declared at the national tallying
aspects therefore signaled an centre, by the Chairperson of the
imperative to distinguish Joho from Commission. Before that declaration
the Maina Kiai case. could be made; several things had to
28. The polling station is the true locus be done:
for the free exercise of the voter‘s i. the polling results had to be
will and once the counting of votes as tallied-Art. 138 (3)(c)
elaborated in the Elections Act, 2011 ii. the count had to be verified-(Art.
and Regulations thereunder, with its 138 (3)(c)
open, transparent and participatory iii. the national threshold had to be
character using the ballot as the met-Article 138(4)(a) and
primary material meant, as it had iv. the County threshold had to be
to, that the count there was clothed met-Article 138(2)(c).
with finality not to be exposed to Those prerequisites could only
any risk of variation or subversion. be done at the National Tallying
Consequently, the concept of Centre by the Chairperson of the
provisional results did not exist in Commission who was also the person
Kenya’s Constitutional electoral who was to Return the Results of the
practice. As such, the Supreme Court Presidential Election in accordance
upheld the determination by the with the Constitution.
Court of Appeal in the Maina Kiai 30. Whilst it was undoubtedly the case
case that sections 39(2) and (3) of the that the role of the returning officer
Elections Act, 2011 were inconsistent was indispensable to the election
with the Constitution and to that process, it was also evidently the case
extent, null and void. However, the that he or she, in fulfilling that role,
Judge departed from the decision by was a creature of statute and was
the Appellate Court to the extent that: bound by the terms of the express
i. it endorsed another layer of legislative provisions. Accordingly,
tallying and verification of the in the performance of his (or her,
result of the presidential vote as the case may be) duties and
in the form of the Constituency functions he had to be guided by
tallying centre and the principles so laid down in such
ii. incapacitated the Chairperson legislation, within which was set out
of the Commission, an integral the framework where those whose
part of the declaration process names were validly on the register
in a presidential election, from of electors could give effect to the
verifying the polling results. franchise so vested in them. He must
29. The word “declared” in article obviously not exceed the limits of
180 (4) of the Constitution (in the the competence so conferred on
petition, Article 138), had been used him, he was therefore confined to
to depict the finality culminating what could legitimately be extracted
43
from the provisions in issue, either furtherance of the right to vote in free
by way of express conferment or and fair elections pursuant to article
necessary intendment. He could not 38 of the Constitution. The system of
operate in excess of those limitations. voting ought to be simple, accurate,
He could not, for example, justify verifiable, secure, accountable and
any act or action, however desirable transparent. It was peculiar that
his intentions could be, based on with regard to voting, article 86 did
any form of inherent power for the not make any direct reference to
simple reason that his office was not transmission of the election results.
amenable to attract competence in However, transmission is an integral
that way. When an occasion arises it part of the electoral process. It is the
would therefore become a matter of mode through which the results leave
statutory interpretation as to whether the polling station to the Constituency
or not the act or omission complained Tallying Centre and the National
of was within the competence of his Tallying Centre. In order to enable
office to perform. voting and give full effect to the right
31. Ordinarily a question regarding to vote, appropriate structures had to
the interpretation or application be set up. According to article 86(d)
of the Constitution could arise of the Constitution, those structures
from a multiplicity of factors and and mechanisms ought to eliminate
interrelationships in the various electoral malpractice. The KIEMS
facets of the law. Consequently, the system was one such mechanism.
Constitution should be interpreted 34. Upon signing form 34A and ensuring
broadly and liberally, so as to capture the same was signed by the agents of
the principles and values embodied the candidates present in the polling
in it. Therefore article 138 of the station, the presiding officer manually
Constitution had to be interpreted inputs the results and the scanned
liberally and in a manner that none of form in the designated electronic
its sub-articles would strike down the kit and electronically transmits the
other. results to the Constituency, County
32. Although the deponent outlined the and National Tallying Centres.
six principles which the transmission The Kenya Integrated Election
systems and database ought to have Management System (KIEMS) kit
been tested against, the source of that applied for that purpose required 3G
opinion was not provided. Sufficient or 4G network, in order to transmit
evidence to prove the link between the results. In the areas where that
those principles, the imperatives nature of network was not available,
of electoral conduct and elaborate the presiding officer would have been
omission by the 1st Respondent, required to move to an area where
supported by any evidence, was not that network was available in order
provided. Experts, when admitted to electronically transmit the results.
before the Court in person or by A copy of the Form containing the
deposition, would have a primary declared results was also to be pinned
function to educate the court in on the door of the polling station.
the technology they would come as It was clear that the counting of the
teachers, as makers of the mantle votes and the declaration of the results
for the court to don. Further, as a at the polling station was manual
practical matter a well-constructed but the transmission was electronic.
expert‘s report containing opinion Nonetheless, by dint of section 44A
evidence would set out the opinion of the Elections Act, 2011 if the
and the reasons for it. If the reasons electronic transmission of the results
stand up the opinion does, if not, then failed then the presiding officer was
the opinion will not. to revert back to the manual system of
33. Article 86 of the Constitution lay transmission in which case he would
down the parameters of voting in have to physically deliver the form
44
34A to the Constituency Returning (S. 44(3) which was in terms of

officer. article 86(a) of the Constitution)
35. Kenya‘s electoral process could iii. In an open and transparent
not be said to be purely electronic. manner, procure the technology
It comprised of both manual and at least 120 days before such
electronic components. It was a rather elections.
ugly grouchy and reluctant mongrel iv. Deploy the technology at least
of two very distinct processes. In sixty days before a general
fact it was a largely manual system. election
It was therefore very distinct from v. Enact Regulations in consultation
electronic electoral processes with relevant agencies,
exhibited in foreign jurisdictions institutions, stakeholders,
such as India, Australia, the United including political parties for the
States of America, Canada, and Brazil aspects listed under section 44
among others. (5) (a-j)
36. In Kenya, the system of voting was vi. Technology shall be restricted to
partly manual and partly electronic voter registration, identification
with the option of reverting to and results transmission
the manual processes should the vii. Establish a technical
electronic processes fail. However, committee to oversee the
the counting of votes, tallying, adoption of technology and its
collation and verification of the implementation for the conduct
results was entirely manual. of the General elections.
37. An interpretation of section 44A It was imperative to highlight that the
of the Elections Act was incomplete use of technology was progressive.
without due consideration to article
39. It was apparent that electronic
38 and 86(d) of the Constitution and
technology had not provided perfect
section 39 and 44 of the Elections
solutions. Such technology had been
Act. With respect, the High Court
inherently undependable, and its
considered it only in light of
adoption and application had been
Section 44 advancing an incomplete
only incremental over time. It was
conclusion.
not surprising that the applicable law
38. Article 39(1)(C) had mandated that for
had entrusted a discretion to IEBC,
purposes of a presidential election,
on the application of such technology
the Commission would electronically
as could be found appropriate.
transmit, in the prescribed form, the
Since such technology had not yet
tabulated results of an election for
achieved a level of reliability, it could
the President from a polling station
not as yet have been considered
to the Constituency tallying Centre.
a permanent or irreversible
Technology however, per section 44,
foundation for the conduct of the
of the Elections Act was used subject
electoral process. It negated the
to the provisions of the entire section,
Petitioner‘s contention that, in the
meaning, that there were prerequisites
instant case, injustice or illegality
to be met before technology could
in the conduct of election would
be employed. Parliament was keen
result if IEBC did not consistently
to introduce conditions preceding
employ electronic technology. It
the use of technology in elections.
followed that the Petitioner‘s case,
The conditions were in-built in the
insofar as it attributed nullity to the
provision as follows:
Presidential election on grounds of
i. A policy for progressive use
failed technological devices, was not
of technology in the electoral
sustainable.
process (S. 44(2)
40. The Constitution and the entire
ii. The technology would be simple,
electoral code enliven the mechanism,
accurate, verifiable, secure,
the manual identification of voters
accountable and transparent
and manual transmission of results
45
in the prescribed instruments of results declared in (a) available (b)

transmission, verifiable by various ascertainable (c) unchallenged (d)
agents including an election Court proper statutory instruments of
using election material expressly declaration, the Petitioners‘case to
referenced under article 86 (d) of have excluded results from 11,000
the Constitution and defined under polling stations which were out of 3G
section 2 of the Elections Act. The and 4G network would be an affront
essence of the section was to save the to the Constitution and the right to
sovereign will of the people from the franchise.
unpredictable nature of technology 43. In accordance with article 138(4) of
and to introduce a layer of verifiability the Constitution, a candidate would
to the electoral process. Parliament be declared elected as President if
was clear, by the terms of section 44A the candidate had received more
that the complementary mechanism than half of all the votes cast in the
which existed as the manual system of election; and at least twenty-five
result transmission in the prescribed per cent of the votes cast in each of
instruments of declaration and whose more than half of the counties. That
finality was only questionable before meant that in order for a candidate
an election Court was sufficient to to be declared President-elect, he/
deliver a presidential election, as she ought to receive more than fifty
happened in areas where there was (50) per cent of the votes cast in the
no 3G or 4G network coverage. election, or what had been commonly
41. The public nature of elections require referred to as the threshold of 50 plus
that all essential steps in the elections 1. If no candidate met the threshold,
are subject to examinability, unless then fresh elections ought be held at
other constitutional interests justifiy which only the two candidates with
an exception. The examination ought the highest number of votes in the
to be possible, by the voter/public, first round would participate. In the
without special expert knowledge. second round, it was the candidate
Therefore, the voter in Kenya who received the largest number
understands the function of the ballot of votes or a simple majority, who
and the critical importance of entries would be declared President-elect.
in the statutory forms 34A, 34B and Therefore percentage points played
34C. Election results were displayed a critical role in determining the
in the relevant forms after the close winner of a presidential election in
of polling for all to see and scrutinize. the first round and whether there
Any mechanism that purported would be a second round of elections.
to complicate the simplicity was Consequently, any factor that would
at variance with the Constitution. affect the percentage of votes
Technology reinforced the efficient attained by a candidate needed to be
and fast translation of the will of the addressed.
people into an ascertainable return. It 44. A non-compliant ballot paper yields
however did not supplant the critical a rejected vote which is invalid and
primary instrument-form 34A therefore conferred no advantage
generated at the primary locus of the upon any candidate. Due to its
election and challengeable only in a numerical inconsequence on any
Court of law. candidate‘s final tally, it should not be
42. The claim of a consistent variance of considered while computing the final
11% between the results for the 3rd percentage outcomes in a Presidential
Respondent and the 1st Petitioner election.
was not proved. Having determined 45. Although the Constitution did
that failure of technology could not define the term cast, Black‘s
not supplant the will of the people, law dictionary defines “cast ‘as “to
recorded in verifiable ballots and formally deposit (a ballot) or signal
other election material and the one‘s choice. Therefore, the act of
46
a voter secretly marking his/her purposively it could be concluded

ballot paper by putting a cross, a tick, that regulations 2,69,70,71,77 and
thumbprint or any other mark in the 78 excluded rejected ballots from the
box and column provided for that total votes cast which are considered
purpose against the name and the for purposes of computing the final
symbol of the candidate for whom results in a presidential election
the voter wishes to vote, constitutes, 49. The Petitioners‘logic collectivizing all
a vote. However, that vote only votes as cast and therefore applicable
counts to the final computation and in computing the final results of
is deemed cast, if the elector complies a presidential election, did not
with the applicable standards distinguish the Presidential election
elaborated under the Constitution, from other elections held on the same
and the electoral law and regulations. day. This reasoning accepted that
46. In certain instances, at the time the stray ballots also ought to form part
voter placed his/her marked ballot of the votes considered in computing
paper in the ballot box, it remained the final percentages. A “stray ballot
a ballot that could be rejected paper” means a ballot paper cast in
unless the voter had satisfied the the wrong ballot box.
requirements necessary to render 50. If any ballot for another election, for
their intention, a vote cast. The ballot instance, Senate or Gubernatorial
paper however bore a mark against was placed in the Presidential ballot
the name and symbol of the person box, then that vote was not cast in the
whom the voter wished to vote. The Presidential election. It was for all
process of marking the ballot paper intents and purposes, a foreign object
was therefore an expression of the that could not be considered a vote
voter‘s wish/will to elect a particular cast in that election. Consequently,
candidate. That act, alongside other it could not be taken into account
enabling electoral processes such when considering the total number
as voter registration comprised the of votes cast in that election. Rejected
voter‘s exercise of his/her political ballots belonged to no candidate.
rights in line with article 38 (2) of the That however, was not to understate
Constitution. the statistical need to record rejected
47. In order for a ballot to translate ballots. Such statistics could be
into a verifiable vote (a vote cast), it helpful in assessing voter turnout
had to be clear in whose favour the and also acting as a barometer for
vote was cast without identifying evaluating civic education programs
the voter. Meaning, that a vote was for voters.
cast only when a presiding officer, 51. In an election petition, the burden
during counting, declared that the of proof at the very onset lies on
intention of the voter was clear and the petitioner to prove the facts
that the vote was made in favour of that he alleges. Once the petitioner
a particular candidate. The intention discharges that, burden it shifts to
of the voter in a voting process the respondent(s) to rebut the claims
that was by secret ballot was a made.
core component of an individual‘s 52. The Court elaborated on the
political right pursuant to article distinction between the legal burden
38 of the Constitution. Therefore and the evidentiary burden, noting
Spoilt ballots did not constitute votes that the legal burden is the initial
eligible to be included in the tally burden on the petitioner to prove the
of the final results in a presidential facts pleaded in the petition. Once
election. the petitioner discharges that legal
48. Rejected ballots in accordance with burden to the standard required, then
Regulations 77 and 78 were void the burden shifts to the respondent to
and were not counted unless in disprove those claims; that being the
terms of Regulation 77 (2). Viewed evidentiary burden.
47
53. The petitioner has to discharge the Cabinet Secretaries committed

the initial legal burden for the the alleged electoral offences,
1st Respondent to be under the the petitioners were required to
evidentiary burden with respect to show firstly that the offences were
the register and the declared results. committed and that secondly, they
The evidential burden regarding the were acting under the instructions of
contents of the register and declared the 3rd respondent. They had to show
results lay on the IEBC; save that, that the nexus between the person who
burden is activated, in an election was alleged to have committed the
petition only when the initial legal offence and the returned candidate
burden has been discharged. and they should have shown the full
54. The petitioner must discharge the particulars of the allegation.
burden of proof in order to succeed 58. Where a petitioner imputed electoral
in their pursuit to invalidate the offences on the part of the returned
declared results. The petitioner is candidate, the burden of proof
not only required to prove that the lay on the petitioner to prove the
irregularity was committed but commission of the electoral offences
also that the irregularity materially by the returned candidate or by his
affected the election result. Section agents or by other persons with
83 of the Elections Act, 2011 his consent, which claim had to be
specifically required that no election supported by cogent evidence, bare
would be declared void by reason of allegations, without more, that the
non-compliance with written law offence was committed would not
if it appeared that the election was suffice. If the evidence supplied failed
conducted in accordance with the to meet the set standard the petition
Constitution and with written law had to fail.
or that the non-compliance did not 59. The law was clear that Cabinet
affect the result of the election. Secretaries were exempt from the
55. Where a claim of electoral malpractice prohibition that public officers should
is made, the standard of proof is one not engage in the activities of a political
above a balance of probabilities but nature, and for good reason. It was to
below beyond reasonable doubt. be observed that Cabinet secretaries
Where a claim of commission of an and County Executives members
election offence is made, the standard served at the pleasure of either the
of proof is similar to that in a criminal President or Governor. They are
matter , which is beyond reasonable political appointees with the express
doubt. Where the claim relates to purpose of delivering the manifesto
data-specific electoral requirements, of their appointing authority or
the standard of proof is also beyond political party. That is an essential
reasonable doubt. part of a political Government in
56. Where the petitioner assails the any democracy. A change in the
declared results on the allegation that Presidency signaled the immediate
the returned candidate committed resignation or replacement of the
election offences it is imperative political appointees not so with the
for the petitioner to prove beyond rest of the civil service whose tenure
reasonable doubt that the returned was protected against the vagaries
candidate or his agents working of politics. That is why civil servants
under his instructions committed the did not and should not participate in
alleged offence. Where an election active politics as they should remain
offence is alleged in an election apolitical.
petition, the standard of proof is 60. There was need by major
beyond reasonable doubt similar to stakeholders, in a process such as the
that in criminal matters due to the one forming the subject matter of
quasi-criminal
Some rights reserved by Samirnature
Luther of the cause. the instant petition (the Presidential
57. With regard to the allegation that election), to gain access to all the
48
relevant documents containing all cogent evidence. In the instances in

the material facts relating to the which the petitioners did discharge the
process. Therefore the need for the burden, the respondents sufficiently
petitioners to get all the relevant supplied cogent evidence in rebuttal.
forms from the 1st respondent was On the other hand where the
completely justifiable. However, the respondents admitted the allegations
1st respondents had been tasked with such as those of administrative errors
an immense constitutional mandate credible evidence was supplied to
to conduct six elections on the same prove that the said errors did not
day which ran concurrently. Though materially affect the results and they
that was humanly possible it was were not in favour of any particular
a daunting task to count, tally and candidate.
verify the results of all the six elections 64. The terms of the Court‘s orders
and more specifically the Presidential were met to the best extent possible.
election within the Constitutional Although the parties seemed to have
timeline of seven (7) days from the differed on the interpretation of the
date of the election. orders, they were very clear and free
61. One could not lose sight of the fact from misconstruction. The orders
that the 1st respondent‘s officials were of access to information and
had been working round the clock read-only access which included
during the election period, therefore copying if necessary. The Court‘s
the reduced efficiency that ordinarily orders were very clear, they were
came with long working hours and also very distinct from the prayers
lethargy was inevitable irrespective originally sought in the application.
of a person‘s will power to efficiently The Court took the concerns of all
accomplish such a sacrosanct process the parties into consideration before
that normally came once in every making a determination on the
five years. The performance by the application. Any inference into the
1st respondent and availing all the intent or assumed order of the Court
forms 34B to the public and to the could not therefore be left to flourish.
petitioners within 4 days of the 65. The basic principles applicable to
declaration was commendable in view construing documents, apply to the
of the fact that the KIEMS system construction of a court‘s judgment
was being used by the 1st respondent or order. The court‘s intention is to
for the first time. The delay by the be ascertained primarily from the
1st respondent of about four days to language of the judgment or order
supply the petitioners with the forms as construed according to the usual,
34A could not be construed to be well-known rules. As in the case of
completely unwarranted under the a document, the judgment or order
circumstances. and the court‘s reasons for giving it,
62. If after the Presidential election must be read as a whole in order to
results had been declared, a person ascertain its intention. If on such a
was desirous of accessing the reading, the meaning of the judgment
prescribed declaration forms relating or order is clear and unambiguous,
to the Presidential election which the no extrinsic fact or evidence is
law did not expressly stipulate were admissible to contradict, vary, qualify,
to be availed to a party, such a party or supplement it.
should seek access to such forms 66. The Electoral Commission was an
through the Court. independent Constitutional body
63. The petitioner in most of the with the powers to regulate vital
allegations made did not discharge procedures such as the deployment
the onus of proof on them. In that of technology in elections. Although
regard the burden did not shift to the the Petitioners prayed for unfettered
respondent to counter the allegations access into the servers, the Court,
since they bore reinforcement by in consideration of the security
49
concerns and in line with principles The qualitative component (the

of justice and equity did not grant result of an election) was an integral
that but granted only specific limited element of election causes. In a
orders to information, which were Presidential election Petition, the
met. For the avoidance of doubt, the Petitioner challenges the election
Supreme Court did not give orders of the President-elect under article
for the Petitioner to access the 140(1). The result of the election
servers of the 1st Respondent, what of the President by Constitutional
was given was access to particular requirement could only be
read only information. The location ascertained when the formula under
of servers, the entry and penetration article 138(4) of the Constitution has
into the servers, were not part of been met. Anyone challenging an
the orders given. It would have been election had to therefore challenge
dangerous to expose the Commission both the quantitative and qualitative
to any administrative incapacity in the aspects of the election.
future. The court had a responsibility 70. The constitutional threshold in a
to preserve the working systems of Presidential election was anchored
the IEBC for future elections. on the numbers and the formula.
67. The 1st and 2nd Respondents were The drafters of the Constitution
not in contempt of the Supreme were very clear that Kenyans ought
Court‘s orders and there was no basis to elect, as President, a person who
to nullify the presidential election on is acceptable to more than half of the
the basis of any information revealed voters in Kenya and one supported by
or otherwise in the Report. The at least 25% of the votes cast in each
allegations of inconsistency in forms of more than half the Counties. It is
34A and 34B was verifiable using the only such a person who had garnered
existing paper-trail which was also that percentage threshold in terms
in the possession of the Petitioner of popular support that was to be
having requested the Court vide a declared elected as President. That
letter dated August 23, 2017 and the was one of the irreducible minimums
entire set of primary records provided for a transformative change in
in scanned form on August 24, 2017. Kenya‘s electoral architecture. There
As such an Order for nullification was a purpose to that formula, the
based on this exercise that was need for national cohesion, a unifying
merely based on controvertible and personality and a nationally popular
speculative grounds, and is well individual. In a petition relating
below the standards set for nullifying to such an election, an election
an election, especially, where other Court had to therefore ascertain
remedies, such as inspection of that any question as to the quality
ballots, exist. of the election had affected the
68. The Majority, did not address constitutional quantitative threshold.
themselves to any other evidence 71. The legal position was that election
in arriving at their determination, results would be upheld unless it
had they systematically analysed had been proved in Court that the
the evidence, they would not irregularities or illegalities changed
have determined the election on a the result of an election or made it
tangential issue whose determination impossible to determine the will of
could easily have been settled through the electorate. The upshot was that
reference, by the Court itself, to the alleged illegalities or irregularities
the evidence deposited by the 1st ought to have had a nexus with the
Respondent 48 hours after filing the declared result.
Petition. 72. It was important to note that the
69. The Supreme Court consistently decisions of the Supreme Court
applied the test in section 83 with triggered various processes in
the result of the election in mind. legal reform or the constitutional
50
performance of institutional use his discretion reasonably. The

mandate. Therefore, a critical aspect reasonableness test requires the
of precedent is to preserve the Judge to consider on the one hand
certainty and predictability of the all considerations supporting the
law. honoring and following of the
73. Although the doctrine of precedent precedent. On the other hand the
does not stand in the way of judge must consider the full scope
progressive interpretation of the of considerations pointing toward
law, that power must be used in a deviation from precedent and
sparing and cautious manner to choosing new law. The Judge must
guarantee continuity, certainty and assign each one of these systems of
adaptability. Those three aspects considerations its proper weight.
had to however be balanced with Having done that, the judge must
the requirement that justice be done. place both on the scale. The Judge
Judicial guidance is an integral part of must choose the prevailing ruling, the
directing people‘s relations. It follows judge must choose the ruling whose
that that critical aspect is wasted if it utility is greater than the damage
becomes impossible to direct actions caused by it. The guiding principle
appropriately when similar facts should be this: it is appropriate to
and circumstances are subjected to deviate from a previous precedent if
different standards of the law. the new precedent‘s contribution to
74. Section 3 of the Supreme Court Act the bridging of the gap between law
and the body of jurisprudence from and society and to the protection
the Supreme Court was central on of the Constitution and its values
the preservation, protection and after setting off the damage caused
affirmation of the Constitution. The by the change is greater than
framers of the Constitution were the contribution of the previous
fully aware that the Supreme Court precedent to the realisation of those
is the only Court that could reverse goals. Deviation from precedent,
itself as it is not bound by its own particularly precedent of the highest
decisions. However, considerations Court is a serious matter, great
for reversal or departure have to be sensitivity is needed to weigh all the
carefully weighed against various considerations.
considerations. Departure from 76. Although the Supreme Court is not
electoral jurisprudence is inviting of bound by its decisions and could
an even firmer and higher restraint review or depart from them, such
from departure of well-settled considerations only ought to be in the
principles. The Judiciary is one of clearest of cases, and distinguishable
several critical institutions that act in fact, circumstances and relevance.
as anchors to the Constitution. The The majority had failed that critical
others are the People, the Executive, test. The value of their deviation from
the Legislature, Independent precedent damaged more than it
Commissions, State Offices and offered utility. It would cause damage
Officers. All these institutions interact to the legal system because it turned
with the law and with each other the entire electoral jurisprudence on
in a manner that is clear, certain, its head.
stable and predictable. A different 77. Every arm of Government has
approach would threaten the fabric the unique role of defending the
of institutional legal interaction. The Constitution, the Bill or Rights and
law is a primary limb of the body the Sovereignty of the people. The
politic. essence of a system of checks and
75. A judge stands before a dilemma balances is to ensure that when
to follow precedent previously one constitutional branch threatens
determined by his Court, or the entire schematic ordering of
deviate from it. The Judge must the Constitution and the State, the
51
other is ready to check those actions. responsibility of every State Organ

Having been part of the inaugural and stakeholders to conduct free,
Supreme Court and having steadily fair and peaceful elections must
and consistently settled the law be matched by equal zeal from the
on elections, the interpretation Court.
of section 83 by the Majority 81. The Majority nullified the conduct
would unleash jurisprudential of the Presidential elections solely on
confusion never before witnessed. the basis that some forms 34A and
Unfortunately, Kenya is part of the 34B lacked security features which
common law system, encumbered were elected by the Commission and
by rules requiring lower Courts to spread in different versions across
pay due deference to the Courts most forms. The Majority, in the
above. Parliament must therefore aftermath of the Registrar‘s report
untie the hands of Courts below by did not even attempt to peruse the
clarifying the meaning of section 83 enormous evidence deposited by the
of the Elections Act. That is the only 1st and 2nd Respondents bearing
way that Kenya can avert a crisis of certified copies of Forms 34A and
jurisprudence in such a sensitive area 34B of the Constitution and against
of law as elections. which they ought to have checked the
78. The Supreme Court cannot roll over alleged irregularities. By subjecting
the defined range of the electoral the integrity of the election to
process like a colossus. The Court considerations of design, that were
must take care not to usurp the neither statutory nor regulatory, the
jurisdiction of the lower Courts in Majority had not only threatened
electoral disputes. The annulment the people‘s belief in the electoral
of a Presidential election will not system, it had overburdened and in
necessarily vitiate the entire general fact, negated the electorate‘s right to
election and the annulment of franchise.
a Presidential election need not 82. In election causes, the Majority ought
occasion a constitutional crisis, as to have disengaged the mechanical
the authority to declare a Presidential gear of Appellate Jurisdiction and fully
election invalid was granted by the considered the evidence against the
Constitution itself. dictates of the burden and standard
79. The Petition contained numerous of proof. The absence of time is not
allegations of irregularity, illegality a sufficient excuse. The Court had a
and electoral offences, enough, if competent institution of research
proved to the required burden and and was well facilitated to be able to
standard, and if it affected the result perform the role of an election Court
to void the Presidential election. The as a final verifying agent in cases of
allegations were however not proved monumental importance such as the
and where evidence was adduced, present Petition.
there was sufficient evidence to rebut 83. Just as Parliament was expected to
the allegations. operate within its constitutional
80. The Supreme Court should never powers as an arm of government so
abdicate its duty as an election must the Judiciary. The system of
Court exercising exclusive original checks and balances that prevents
jurisdiction to hear and determine autocracy, restrains institutional
disputes relating to the elections to excesses and prevents abuse of power,
the office of president arising under apply equally to the Executive, the
article 140 of the Constitution. As Legislature and the Judiciary. No
an election Court, the Court must one arm of government is infallible
not narrow the scope of its remedies and all are equally vulnerable to
nor delegate its powers to the parties. the dangers of acting ultra vires the
The zeal of the voter to participate Constitution. Whereas, the Executive
in elections and the overwhelming and the Legislature are regularly
52
tempered and safeguarded through and if, the burden of proof shifted,
the process of regular direct elections the Commission discharged it
by the people, the discipline of an satisfactorily.
appointed and unelected judicial Petition dismissed.
arm of Government is largely self-
regulatory. The parameters of
encroachment on the powers of
other arms of government have to
be therefore clearly delineated, limits
acknowledged and restraint fully
exercised. It is only through practice
of such cautionary measures that
the remotest possibility of judicial
tyranny could be avoided.
84. Had the Majority been engaged in
the mode of a Court of exclusive
original jurisdiction, it would have
found that each and every allegation
in the Petition was addressed to a
satisfactory standard and where
53
Court of Appeal
Capacity of the chairperson of the IEBC to confirm, vary or verify the results
of a Presidential Election.
Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop
Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017]
eKLR
Appeal 105 Of 2017
Court of Appeal at Nairobi
Makhandia A, Ouko W, Kiage P, M’inoti K, and Murgor A, JJ. A
June 23, 2017
Reported by Ribia John
Statutes – constitutionality of statutes – – rationale of res judicata – elements of

section 39(2) and (3) of the Elections Act – res judicata - what was the rationale for
Regulation 83(2) of the Election (General) the doctrine of res judicata - what were the
Regulations, 2012 - whether sections 39(2) elements for the doctrine of res judicata -
and (3) of the Elections Act and regulations whether the matters raised instant appeal
83(2) and 87(2) (c) of the Election (General) were res judicata for addressing the issues
Regulations, 2012 were unconstitutional – raised in the 2013 Presidential Election
Elections Act, 2011 sections 39(2) and 39(3) Petition – Civil Procedure Act section 7
– Election (General) Regulations, 2012 Statutes – construction of statutes -
regulation 83(2) interpretation of statutes – interpretation of
Constitutional Law – Independent bodies the constitution – what were the principles
and Commissions – Independent Electoral that applied in the construction of statutes
Boundaries Commission (IEBC) – role of the – what were the principles that applied in
IEBC – role of the chairperson of the IEBC interpretation of the constitution – what
- whether the chairperson of the IEBC could were the principles applicable in interpreting
alone, at the national tallying centre, confirm statutes – what were the principles
or vary or verify the results of the presidential applicable in interpreting statues vis a vis the
elections - what were the roles and functions Constitution
of the Chairperson of the IEBC vis a vis the Brief Facts
role and functions of the IEBC – Constitution
of Kenya, 2010 article 88 – Independent The instant appeal arose from the
Electoral and Boundaries Commission Act judgment and decree of a three-judge
section 4 bench of the High Court delivered
on April 7, 2017. The judgment was
Jurisdiction – Jurisdiction of the High rendered in a constitutional petition
Court – Jurisdiction of the Supreme Court filed by the 1st, 2nd and 3rd respondents
– jurisdiction of the High Court vis a vis respectively, against the Independent
the jurisdiction of the Supreme Court – Electoral & Boundaries Commission
jurisdiction of the High Court to determine (IEBC), the appellant, and the Attorney-
matters that would ultimately have an effect General, the 4th respondent.
on the conduct of the presidential election -
whether the High Court had jurisdiction to The petition was filed pursuant to
hear and determine matters that would have Article 165(3) (d) of the Constitution
an effect on the conduct of a general election of Kenya, 2010 (Constitution) and
- whether the High Court determined issues sought declarations regarding the
that were exclusively reserved for the Supreme constitutionality of provisions of
Court under article 140 of the Constitution – sections 39(2) and (3) of the Elections
Constitution of Kenya, 2010 articles 140, 163 Act and regulations 83(2) and 87(2) (c) of
and 165 the Election (General) Regulations, 2012.
Upon hearing the parties, the High Court
Civil practice and procedure – res judicata held that it had jurisdiction to hear and
54
determine the petition; that the issues viii. Whether the matters raised
raised in the petition were not res judicata instant appeal were res judicata
and declared that sections 39(2) and (3) of for addressing the issues raised
the Elections Act and Regulations 83(2) in the 2013 Presidential Election
and 87(2)(c) of the Election (General) Petition?
Regulations, 2012 were unconstitutional ix. What were the principles
and therefore null and void. applicable in interpreting the
Aggrieved by the decision of the High Constitution?
Court, the IEBC filed the instant x. What were the principles
decision on grounds that the High Court applicable in interpreting
misapprehended the law regarding statutory provisions?
the constitutional and statutory xi. What were the principles
requirements for declaration of the applicable in interpreting the
result of the presidential elections. The Constitution vis a vis statutory
appellant also claimed that the High provisions?
Court erred in declaring section 39(2) xii. What were the principles
and (3) of the Act and regulations 83(2) applicable in the construction of a
and 87 (2) unconstitutional, null and void; statute?
erred in holding that it had jurisdiction Relevant Provisions of the Law
to hear and determine the petition; and Constitution of Kenya, 2010
that the High Court erred in holding that
the dispute was not res judicata. article 88(4)
88. Independent Electoral and
Issues Boundaries Commission
i. Whether sections 39(2) and (3) of (4) The Commission is responsible
the Elections Act and regulations for conducting or supervising
83(2) and 87(2) (c) of the Election referenda and elections to any elective
(General) Regulations; that body or office established by this
provided that the chairperson Constitution, and any other elections
of the IEBC could alone, at the as prescribed by an Act of Parliament
national tallying centre, confirm and, in particular, for—
or vary or verify results the of (a) the continuous registration of
the presidential elections; were citizens as voters;
unconstitutional. (b) the regular revision of the voters’
ii. What were the roles and functions roll;
of the Chairperson of the IEBC vis (c) the delimitation of constituencies
a vis the role and functions of the and wards;
IEBC? (d) the regulation of the process by
iii. Whether the High Court had which parties nominate candidates
jurisdiction to hear and determine for elections;
matters that would have an effect (e) the settlement of electoral disputes,
on the conduct of a general including disputes relating to or
election arising from nominations but
iv. whether the High Court excluding election petitions and
determined issues that were disputes
exclusively reserved for the subsequent to the declaration of
Supreme Court under article 140 election results;
of the Constitution (f) the registration of candidates for
v. What was the difference between election;
“announcement” and “declaration” (g) voter education;
of election results? (h) the facilitation of the observation,
vi. What was the rationale for the monitoring and evaluation of
doctrine of res judicata? elections;
vii. What were the elements for the (i) the regulation of the amount of
doctrine of res judicata? money that may be spent by or on
55
behalf of a candidate or party in other than a tribunal appointed under

respect of any election; Article 144;
(j) the development of a code of (d) jurisdiction to hear any question
conduct for candidates and parties respecting the interpretation of
contesting elections; and this Constitution including the
(k) the monitoring of compliance with determination of—
the legislation required by Article (i) the question whether any
82(1)(b) relating to nomination of law is inconsistent with or in
candidates by parties contravention of this Constitution;
Article 140 (ii) the question whether anything
140. Questions as to validity of said to be done under the
presidential election authority of this Constitution
(1) A person may file a petition in or of any law is inconsistent
the Supreme Court to challenge the with, or in contravention of, this
election Constitution;
of the President-elect within seven (iii) any matter relating to
days after the date of the declaration constitutional powers of State
of the organs in
results of the presidential election. respect of county governments
(2) Within fourteen days after the and any matter relating to the
filing of a petition under clause (1), constitutional relationship
the between the levels of government;
Supreme Court shall hear and and
determine the petition and its decision (iv) a question relating to conflict
shall be final. of laws under Article 191; and
(3) If the Supreme Court determines (e) any other jurisdiction, original
the election of the President-elect to or appellate, conferred on it by
be legislation.
invalid, a fresh election shall be (4) Any matter certified by the
held within sixty days after the court as raising a substantial
determination. question of law under clause (3)(b)
or (d) shall be heard by an uneven
Article 163(3)(a) number of judges, being not less
163. Supreme Court than three, assigned by the Chief
(3) The Supreme Court shall have— Justice.
(a) exclusive original jurisdiction to (5) The High Court shall not have
hear and determine disputes relating jurisdiction in respect of matters—
to the elections to the office of (a) reserved for the exclusive
President arising under Article 140; jurisdiction of the Supreme Court
Article 165 under this
165. High Court Constitution; or
(3) Subject to clause (5), the High
Court shall have— (b) falling within the jurisdiction
(a) unlimited original jurisdiction in of the courts contemplated in
criminal and civil matters; Article 162
(b) jurisdiction to determine Elections Act, 2011
the question whether a right or
fundamental Sections 39(2) and (3)
freedom in the Bill of Rights has been 39. Determination and
denied, violated, infringed or declaration of results
threatened;
(2) Before determining and
(c) jurisdiction to hear an appeal from
declaring the final results of an
a decision of a tribunal appointed
election under subsection (1), the
under this Constitution to consider
Commission may announce the
the removal of a person from office,
56
provisional results of an election. (f) the registration of

(3) The Commission shall candidates for election;
announce the provisional and final (g) voter education;
results in the order in which the (h) the facilitation of the
tallying of the results is completed observation, monitoring and
Election (General) Regulations, evaluation of elections;
2012 regulation 83(2) (i) the regulation of the amount
Election (General) Regulations, 2012 of money that may be spent by or
Regulation 83(2) on behalf of a candidate or party
in respect of any election;
83. Tallying and
announcement of election (j) the development and
results enforcement of a code of conduct
for candidates and parties
The Chairperson of the contesting elections;
Commission shall tally and verify
the results received at the national (k) the monitoring of
tallying centre. compliance with the legislation
required by Article 82(1)(b) of
Independent Electoral and Boundaries the Constitution relating to
Commission Act nomination of candidates by
Section 4 parties;
4. Functions of the (l) deleted by Act No. 36 of
Commission 2016, s. 30;
As provided for by Article (m) the use of appropriate
88(4) of the Constitution, the technology and approaches in the
Commission is responsible performance of its functions; and
for conducting or supervising (n) such other functions as are
referenda and elections to any provided for by the Constitution
elective body or office established or any other written law.
by the Constitution, and any other
elections as prescribed by an Act Civil Procedure Act
of Parliament and, in particular, Section 7
for— 7. Res judicata
(a) the continuous registration No court shall try any suit or
of citizens as voters; issue in which the matter directly
(b) the regular revision of the and substantially in issue has
voters’ roll; been directly and substantially in
(c) the delimitation of issue in a former suit between the
constituencies and wards in same parties, or between parties
accordance with the Constitution; under whom they or any of them
claim, litigating under the same
(d) the regulation of the title, in a court competent to try
process by which parties nominate such subsequent suit or the suit
candidates for elections; in which such issue has been
(e) the settlement of electoral subsequently raised, and has been
disputes, including disputes heard and finally decided by such
relating to or arising from court.
nominations, but excluding Explanation. —(1) The expression
election petitions and disputes “former suit” means a suit which
subsequent to the declaration of has been decided before the suit
election results; in question whether or not it was
57
instituted before it. founded on the essential values of

Explanation. —(2) For the human rights, equality, freedom,
purposes of this section, the democracy, social justice and the
competence of a court shall be rule of law.
determined irrespective of any 2. The Constitution declared the
provision as to right of appeal Republic of Kenya to be a multi-
from the decision of that court. party democratic State founded on
Explanation. —(3) The matter the national values and principles
above referred to must in the of governance captured in article
former suit have been alleged by 10 of the Constitution. These
one party and either denied or values were not mere suggestions
admitted, expressly or impliedly, or aspirations to be attained at
by the other. some future date, by generations
yet unborn. They were directive
Explanation. —(4) Any matter and obligatory principles that
which might and ought to have were immediately and presently
been made ground of defence or binding on all State organs,
attack in such former suit shall State officers, public officers
be deemed to have been a matter and all persons whenever any
directly and substantially in issue of them applied, or interpreted
in such suit. the Constitution; or whenever
Explanation. —(5) Any relief any of them enacted, applied or
claimed in a suit, which is not interpreted any law; or whenever
expressly granted by the decree any of them made or implemented
shall, for the purposes of this public policy decisions. They were
section, be deemed to have been broad and all inclusive in their
refused. reach, sweeping in their sway and
peremptory in their command.
Explanation. —(6) Where persons
litigate bona fide in respect of a 3. The people of Kenya arrived at
public right or of a private right the national values and principles
claimed in common for themselves espoused in article 10 of the
and others, all persons interested Constitution out of a studious
in such right shall, for the purposes consideration and appreciation
of this section, be deemed to claim of the travails and trials of our
under the persons so litigating. nationhood and the struggles
and sacrifices that they, and their
Held heroic compatriots, had made
1. When the people of Kenya adopted to bring freedom and justice to
and enacted the Constitution, it Kenya. They were also keenly
was an epochal moment, pregnant aware that the ties that bound
with meaning and significance, them in united nationhood were
and speaking to the indomitable periodically stretched and strained
will of the people to take charge at election time and so sought to
of their destiny and bend the arc insulate the electoral process from
of history to align with their most the deleterious perils and malaise
cherished aspirations and ideals as of opacity, corruption, crime and
to how they wished to be governed, malpractice. The antidote they
and to organize their affairs. prescribed was an electoral system
Theirs was doubtless the most founded on, and infused with,
momentous act of sovereignty clearly defined core principles
and self-determination since including, in particular, free and
Independence, and in the fair elections that were conducted
Constitution, they declared by an independent body, that
the birth of a new dispensation was transparent in character and
58
administered in an impartial, taken that the dispute before it

neutral, efficient, accurate and had not related to the elections of
accountable manner. the office of the President. Having
4. The duty of the first appellate concluded that the Petition had
Court as spelt out in rule 29 of not involved a dispute relating
the Court of Appeal Rules was to the election to the office of
to re-evaluate or re-analyse the president and having found that
evidence exhaustively and to it had not involved any of the
draw independent inferences and matters set out in rule 12(2) over
make independent conclusions. which the Supreme Court had
An appellate Court had to pay exclusive jurisdiction, the plunge
due respect to the findings and into the question whether the
conclusions of the first instance process of electing the president
Court, but would not hesitate to had commenced added nothing to
depart therefrom if they were the judgment but sheer confusion.
based on no evidence, or were It gave the impression, that had
founded on a misapprehension the Court found that the process
of the law or evidence or were of electing the President had
plainly wrong. The latitude of commenced, it would not have
the first appellate Court to depart assumed jurisdiction, which was
was even greater where, as in the not in sync with its first conclusion
instant appeal, the petition in the that the dispute had not involved
High Court proceeded by way of election of the president or any
affidavit evidence and the Court issue under rule 12(2).
of first instance did not have 6. The High Court had the
the added advantage of hearing jurisdiction to determine the
and seeing the live witnesses in Petition. The High Court’s
testimony. jurisdiction flowed from article
5. The conclusion of the High Court 163(5) of the Constitution which
on the question of jurisdiction was stipulated that the High Court did
contradictory. The High Court not have jurisdiction in respect of
first held that the Petition had matters reserved for the exclusive
not involved a dispute relating to jurisdiction of the Supreme Court
the elections of the office of the and those that fell within the
President within the meaning of jurisdiction of the Employment
Article 140 of the Constitution. and Labour Relations Court
The High Court also found that and the Environment and
the petition before it had not Land Court. Article 140 of the
raised other issues connected Constitution revealed that that the
with the election for the office jurisdiction reserved exclusively
of the President as would entitle for the Supreme Court was the
the Supreme Court to assume determination of whether the
jurisdiction under rule 12(1) of President-elect had been validly
the Supreme Court (Presidential elected.
Election Petition) Rules. The 7. A dispute relating to the elections
High Court identified those issues to the office of president could
as the validity of the presidential arise even before the president-
election, declaration of a run-off, elect was declared pursuant to
qualification of a president-elect, article 138(10) of the Constitution.
commission of an election offence, These included a situation where
or validity of the nomination of there was no president-elect, as in
a presidential candidate. Later the case where no candidate was
in the judgment the High Court declared to have been duly elected
veered from the position it had under Article 138(4) thereof, or
59
where there was a dispute arising ousted. The Court found that the
in the process of ascertaining the dispute before it also involved
two candidates with the most interpretation of the Constitution,
votes for the purposes of a run-off. which by dint of Article 165(3) of
8. There would be disputes relating the Constitution was vested in
to the elections to the office of the High Court. The Supreme
President that would arise even Court held that where litigation
before the election of the president- entailed issues of constitutional
elect had been announced. The interpretation, the matter had to
Supreme Court (Presidential come in the first place before the
Petition Rules), 2013, and in High Court, with the effect that
particular rule 12 set out some of interpretation of the Constitution
the issues that would arise outside by both the Court of Appeal and
the strict confines of Article 140 the Supreme Court would have
of the Constitution, such as, been limited to the appellate stages.
the validity of the nomination The Supreme Court declined to
of a presidential candidate or exercise its exclusive jurisdiction,
commission of an election offence which it found properly engaged,
by such candidate. and allowed the High Court to
first exercise its jurisdiction to
9. The fact that a matter was interpret the Constitution and the
reserved for the Supreme Court matter, in the event of any party
did not take away the jurisdiction being dissatisfied by the decision
of the High Court to interpret the of the High Court, to end up before
Constitution and in appropriate the Supreme Court through the
cases, the Supreme Court would appellate process.
not consider the issue on first
instance, but would consider the 11. The High Court had jurisdiction
same in the context of its appellate to determine the constitutionality
jurisdiction. of the impugned provisions of the
Elections Act and the Election
10. In, Re The Matter of the Interim (General) Regulations, 2012 made
Independent Electoral Commission thereunder, and the fact that the
[2011] eKLR, the Petitioner sought 1st, 2nd and 3rd Respondents
the advisory opinion of the could arguably have raised the
Supreme Court as to the date of issues before the Supreme Court
the first general election under under its rules, did not deprive
the Constitution. Under Article the High Court of the jurisdiction
163(6) of the Constitution the vested by Article 165(3) (d) of the
jurisdiction to give advisory Constitution. The High Court did
opinions on any matter concerning not commit any error neither did
county governments was vested it assume a jurisdiction that it did
exclusively in the Supreme not have.
Court. The Supreme Court found
that the petition before it had 12. Res judicata was a matter properly
properly engaged its exclusive to be addressed in limine as
jurisdiction to give advisory it possessed jurisdictional
opinion. Even after finding that consequence because it constituted
the issue before it was properly a statutory peremptory preclusion
within its exclusive jurisdiction of a certain category of suits. That
to render an advisory opinion, was clear from section 7 of the
the Supreme Court did not take Civil Procedure Act. For the bar of
the view that the jurisdiction of res judicata to be effectively raised
the High Court to interpret the and upheld on account of a former
Constitution as regards the date suit, the following elements had to
of the first general election was be satisfied, as they were rendered
60
not in disjunctive, but conjunctive rested in the public interests for

terms: swift, sure and certain justice.
a) The suit or issue was directly 15. The practical effect of the res
and substantially in issue in judicata doctrine was that it was
the former suit. a complete estoppel against any
b) That former suit had to be suit that ran afoul of it, and there
between the same parties or was no way of going around it,
parties under whom they or not even by consent of the parties
any of them claim. because it was the Court itself that
c) Those parties were litigating was debarred by a jurisdictional
under the same title. injunct from entertaining such
d) The issue was heard and finally suit.
determined in the former suit.
e) The Court that formerly 16. The learned Judges of the High
heard and determined the Court had not erred in their
issue was competent to try the categorical finding that the
subsequent suit or the suit in Petition before them was not res
which the issue is raised. judicata. The issue was not meant
to be related to issues in a previous
13. Further elements to a claim of res suit. A party to a suit that claimed
judicata were that: res judicata was to demonstrate
a. the former judgment or order that the elements of res judicata
had to be final. as enumerated under section 7
b. The judgment or order had to of the Civil Procedure Act were
be on merits. demonstrated. The Appellant had
c. The judgment or order had to significantly failed to do so.
be rendered by a court having
jurisdiction over the subject 17. Mere reference to the Presidential
matter and the parties. Election Petition filed in 2013
d. Between the first and the did not bring the matter within
second action, there had to be the purview of res judicata. The
identity of parties, of subject requirement was that the issue
matter and cause of action. raised in the later litigation
should have been directly and
14. The rule or doctrine of res substantially in issue in the former.
judicata served the salutary aim It was a stretching of the facts a
of bringing finality to litigation wee bit too far to describe the
and afforded parties closure and petition that was before the High
respite from the spectre of being Court as an attempt to re-litigate
vexed, haunted and hounded by the Supreme Court verdict on the
issues and suits that had already 2013 Presidential poll.
been determined by a competent
court. It was designed as a 18. The main issue in the 2013
pragmatic and common-sensical Presidential Election Petition, the
protection against wastage of validity of the 2013 Presidential
time and resources in an endless Election, was not before the
round of litigation at the behest Court in the instant appeal.
of intrepid pleaders hoping, by a The direct and substantial issue
multiplicity of suits and fora, to before the instant Court was not
obtain at last, outcomes favourable raised before, and determined by
to themselves. Without it, there the Supreme Court in the 2013
would be no end to litigation, Presidential Election Petition. On
and the judicial process would be that score alone, the plea of res
rendered a noisome nuisance and judicata was for rejection.
brought to disrepute and calumny. 19. (check for hanging phrase) The
The foundations of res judicata non-commonality of issues
61
apart, the plea of res judicata was were important. Interpretation

bound to fail on the basis that the was best which made the
parties between the two sets of textual interpretation match the
proceedings were not the same, contextual. In contemplating the
or those claiming under the same provisions, the intent and purport
parties and litigating under the of the Constitution, the objectives
same title. The 1st Respondent and aspirations, as well as the
was separate and distinct from mischief to be remedied, were also
the African Centre for Open brought into focus.
Governance (Africog). Even if 23. Another imperative principle of
the instant Court was to accept interpretation was the principle of
that he was a director thereof. harmonious interpretation. What
Further, and more fundamentally, was required was a purposive
Africog was not a party to any of interpretation that brought into
the petitions consolidated and focus the principles, purposes, and
decided by the Supreme Court peculiarities of the enactment, as
in the 2013 Presidential Election well as the historical context and
Petition. Gladwell Wathoni extrinsic materials that formed an
Otieno who was associated with integral part of the Constitution’s
Africog was a party in the 2013 existence.
Presidential Election Petition, but,
mere association, as a basis for 24. In the interpretation of a
mounting a res judicata challenge Constitution, a purposive
to a suit, would be an absurd approach was also to be applied.
extrapolation. The adoption of a purposive
approach was necessary because
20. The res judicata objection stood the Constitution stated general
absolutely no chance of succeeding principles and expressed purposes
and its rejection by the High Court without condescending to
was inevitable. The challenge to particularity and definition of
the learned Judges’ sound and terms. Gaps and ambiguities were
solid finding and holding on the bound to arise and, in resolving
same was doomed to suffer the them, the Courts were bound to
same fate. give effect to the principles and
21. Interpretation of a Constitution purposes declared in, and to be
entailed an enquiry into the ascertained from, the Constitution
intention of the drafters to discern and relevant extrinsic materials.
the meaning of its provisions. In In ascertaining the true meaning
enunciating the fundamentals, a of the instrument, the courts
delicate balancing act required had to consider the purpose of
to be undertaken, of the textual, the instrument and its relevant
the contextual, the intent and provisions as well as the language
purport, as well as the spirit of the of its text in the light of the context,
Constitution. context being of particular
22. The text was construed to establish importance in the interpretation
the meaning of the words, and of a constitutional instrument.
the language, care being taken 25. A correlation could be established
to ensure that a literal or rigid between the principles of
interpretation was eschewed. interpretation enumerated and
Interpretation had to depend on the prescriptive manner in which
the text and the context. They the Constitution in article 259
were the bases of interpretation. directed that the Constitution be
If the text was the texture, interpreted. A purposive approach
context was what gave the colour. was to be applied whenever the
Neither could be ignored, both Constitution was to be interpreted.
62
The object of the Court in the identification of ideas and

interpreting legislation was to aspirations of a nation, and the
give effect so far as the language articulation of the values bonding
permitted to the intention of the its people and disciplining its
legislature. If the language proved government. The spirit and tenor
to be ambiguous, the Court could of the Constitution had to preside
see no sound reason not to consult and permeate the process of
Hansard to see if there was a clear judicial interpretation and judicial
statement of the meaning that the discretion.
words were intended to carry. The 28. In the context of the Constitution,
days had long passed when courts there was an ever-present spirit
adopted a strict constructionist that relentlessly pervaded its
view of interpretation, which provisions. As a consequence, that
required them to adopt the literal spirit which was always speaking
meaning of the language. The had to be discerned as an integral
Courts now adopted a purposive part of interpreting the provisions
approach which sought to give of the Constitution. Also envisaged
effect to the true purpose of as a component of the spirit, were
legislation and were prepared to the distinct political undertones
look at much extraneous material that were interwoven into the
that bore upon the background fabric of various provisions.
against which the legislation was The Constitution stated both
enacted. declarations of general principles
26. Holistic interpretation was to be and statements of policy. Such
considered in conjunction with principles or policy declarations
the purposive approach. Holistic signified a value system, an ethos, a
interpretation meant interpreting culture, or a political environment
the Constitution in context. within which the citizens aspired
It was contextual analysis of a to conduct their affairs and to
constitutional provision, reading interact among themselves and
it alongside and against other with their public institutions.
provisions, so as to maintain a 29. There were other important
rational explication of what the principles which applied to the
Constitution had to be taken to construction of statues which also
mean in light of its history, of applied to the construction of a
the issues in dispute, and of the Constitution such as:
prevailing circumstances. Such
scheme of interpretation did not a. Presumption against
mean an unbridled extrapolation absurdity; which meant
of discrete constitutional that a court was to avoid a
provisions in each other, so as to construction that produced an
arrive at a desired result. absurd result.
b. Presumption against
27. In pursuance of constitutional unworkable or impracticable
interpretation, the spirit of the result; which meant that a
Constitution was a dynamic court was to find against a
that was constantly at play and construction which produced
that required consideration. unworkable or impracticable
The Constitution of a nation result.
was not simply a statute which c. Presumption against
mechanically defined the anomalous or illogical result;
structures of government and which meant that a court was
the relationship of government to find against a construction
and the governed. It was a mirror that created an anomaly
reflecting the national soul, or otherwise produced an
63
irrational or illogical result and triggered bloody ethnic

d. Presumption against artificial conflicts in nearly every election
result; which meant that a cycle. The reforms to electoral
court was to find against a processes that had been initiated
construction that produced in Kenya had been triggered by,
artificial result among other factors, failure to
e. Principle that the law should deliver credible and acceptable
serve public interest; meaning elections. Pressure from the
that the Court should strive to public had also been instrumental
avoid adopting a construction in the introduction of some of
which is in any way adverse the electoral reforms that had
to public interest, economic, been witnessed, as was the case
social and political or in 1997 when, under the auspices
otherwise. of the Inter-Parties Parliamentary
30. The instant Court was Group (IPPG) far reaching
compelled to adopt a purposive constitutional changes were
approach when interpreting the introduced. Global and regional
Constitution, having regard to the obligations for transparent and
intent and purpose, the historical accurate electoral administration
socio-political context, the values, had played an equally important
aspirations and the spirit of the role in setting the yardsticks by
Constitution. Criticism directed which the electoral processes
at the High Court by the Appellant and administration were to be
s on grounds that interpretation assessed in future. But even with
was to be formalistic or restricted those many strides, the fear of
to the legal text alone and the manipulation of the election
literal meaning of the provisions, results and interference with the
and that a purposive or normative integrity of the electoral process
interpretation was strictly limited generally persisted.
to the Bill of Rights only was not 32. Concerns about the counting,
justified. tallying, transmission and
31. It was apposite for the clear announcement of results are not
appreciation of the long, windy new in Kenya. In 1992, on the
and sometimes turbulent journey occasion of the first multiparty
Kenya had travelled to retrace elections, the electoral law did
Kenya’s electoral history. Because not stipulate the mechanism for
elections determined political transmittal of constituency results
winners and losers, electoral to the Electoral Commission of
processes, from voter registration Kenya (ECK) in Nairobi. Neither
through to declaration of the polling day arrangements
results, had long been targeted nor the counting processes were
for manipulation and were the adequately designed or carried
foremost cause of electoral out to meet the specific situations
conflicts. Such manipulation or, and needs which the Kenyan
sometimes even the mere threat electoral environment required.
of it weakened public confidence The situation had not much
in democratic processes, in the improved by the 1997 general
courts, security agencies, in the elections. Neither had it improved
legislature and in the end could in the 2002 general elections. In
erode the legitimacy of governance 2002 initial results to the public
institutions. Lack of trust among were first released through the
the political parties and players and media as ECK was not fast enough
suspicions of electoral fraud had to release the results due to what
in the past catalysed polarisation was attributed to poor network in
some of the polling stations.
64
33. The violence that convulsed Kenya c. Ample time be allowed for
after the disputed 2007 presidential verifying provisional results,
election was a scar etched in our so that they are declared
history and engraved in our hearts final/official only once there
and souls forever. Regarding its was no risk that errors
causation, the ECK was not able to may still be found or non-
manage the counting, tallying and frivolous objections raised.
results announcement processes Most countries allowed one
in such a way that it secured the to two weeks for verifying
integrity of the electoral process provisional results. There had
at either the presidential or the to be sufficient time to check
parliamentary level. If one, be the provisional results, which
it a voter, a candidate, a media were given status as final results
representative, a party leader, or only when all objections had
an election observer, could not been considered, all checks
trust the accuracy of the election and rechecks conducted
results published by an Electoral and the final verdict issued
Management Body (EMB) then by the proper authorities.
nothing was left and the political Given a clear explanation
system lost credibility as well as of what a provisional result
legitimacy. was, there was no problem
34. Regarding the need for integrity in making voters understand
in the counting, tallying of votes that election results were so
and the ultimate announcement important that they could be
of results, the Kriegler Report declared final only once they
made three recommendations. had been properly scrutinized
They were that: and checked.
a. The ECK integrate the 35. In the 2013 general elections,

various descriptions of the there were challenges experienced
entire counting and tallying with the electronic transmission
procedure into one document of the results. Only 17,000 of the
– and one document only 33,000 polling stations managed
– which would then be the to transmit results before it
principal description and had was overwhelmed by some
to be adhered to. The need for technical hitches. The electronic
such descriptive regulations transmission method of getting
did not depend on possible results had to be discontinued
changes in the counting and when it became too slow and
tallying system. although the problem was
identified and fixed, a number
b. The ECK was to develop of officials had abandoned the
an integrated and secure transmission as they took hard
tallying and data transmission copies of the same to tallying
system, which would allow centres. There were also network
computerized data entry and failures and suspicions of system
tallying at constituencies, hacking which necessitated a
secure simultaneous reversion to physical submission
transmission (of individual of the results.
polling station level data too)
to the national tallying centre, 36. The Report of the Joint
and the integration of this Parliamentary Select Committee
results-handling system in on the Matters Relating to the
a progressive election result IEBC (August 16, 2016) noted
announcement system that:
a. since the first level of
65
declaration of results was review acts of the legislative and

at the polling station, those executive arms of Government
results were to be final and which could be demonstrated as
were only be challenged in affecting constitutional rights
a court of law; and fundamental freedoms of
b. the form filled out for the the citizen was axiomatic. Yet
declaration of results at the the exercise of this power by the
polling station was to be the courts, though constitutionally
primary election form and sanctioned, had been a source of
all other forms could only endless misunderstanding and
be tallies of the final results friction. Whenever it was exercised
rather than confirmation the executive and the legislative
forms; branches of Government had
c. regulations 76, 77 and 78 many a time accused the Judicial
of the Election (General) arm of overreaching itself. That
Regulations, 2012 were to notwithstanding, the Judiciary
be amended to provide for had to always be true to the
conclusive determination Constitution whose edicts it had
of ballots at polling to declare without fear or favour
stations, and amend the and accept that it would not always
relevant electoral forms receive accolades for doing so.
to align them with that 39. Legislation was presumed to be
recommendation; and that constitutional because it was
d. further, the Elections assumed that, in enacting it, the
Act was to be amended to Legislature did so, on behalf of the
provide that the results populace with a view to addressing
announced at the polling their needs and problems. The
station be final and definite. people’s representatives were
These recommendations were expected to enact only laws that
informed, according to the they considered to be reasonable
report, by concerns based on past for the purpose for which they
experience where some returning were enacted.
officers would annul results that
had been announced at polling 40. The power to question the
stations, causing uncertainty and constitutionality of a statute
tension in the electorate. It was was circumscribed by many
that mischief that informed the conditions. To determine the
enactment of Article 138(3)(c) of constitutionality of a section of a
the Constitution, which required statute or Act of Parliament, the
that in a presidential election, court had to consider the purpose
after counting of the votes in the and effect of the impugned statute
polling stations, the IEBC was or section thereof. If its purpose
to tally and verify the count and did not infringe a right guaranteed
declare the result. by the Constitution, the court had
to go further and examine the
37. The Committee recommended effect of the implementation. If
that the Elections Act was to either its purpose or the effect of its
be amended to provide for the implementation infringed a right
electronic transmission of the guaranteed by the Constitution,
tabulated results of election for the the impugned statute or section
President from a polling station to thereof would be declared
the constituency tallying centres unconstitutional.
and ultimately to the national
tallying centre. 41. The burden was on the 1st, 2nd and
3rd respondents to demonstrate
38. The power of the Court to that the impugned provisions
66
were enacted or made for an returning officers trooping to

unconstitutional purpose or that Nairobi by whatever means of
in their operation and application, transport, carrying in hard copy
they had an unconstitutional the presidential results which they
effect. had announced at their respective
42. The 1st, 2nd and 3rd respondents constituency tallying centres. The
were concerned that whereas other fear was that some returning
articles 86 and 138 of the officer would in the process tamper
Constitution made no reference with the announced results.
or mention of the results from the 45. One of the factors in the
constituency being provisional or electoral system reforms that was
subject to any confirmation, the underscored in the 2016 and 2017
terms of the impugned provisions amendments to the Elections
suggested that those results could Act, was the use of information
be interfered with at the national technology to guarantee the
tallying centre by the chairperson accuracy and integrity of the results
of the IEBC, who it designated of elections. Section 44 of the
as the returning officer for the Election Act was introduced in the
presidential election, yet the results 2016 amendment to provide, inter
announced at the constituency alia, for electronic transmission of
tallying centre were final. results, to ensure use of technology
43. Section 39 of the Elections Act that was simple, accurate,
was amended by introducing verifiable, secure accountable and
subsection (1C) to specifically transparent and to ensure that
provide for the transmission of after consultations with relevant
presidential results. Pursuant stakeholders, regulations be
to the constitutional principles made for the implementation of
of transparency, impartiality, section 44 thereof. Section 44A
neutrality, efficiency, accuracy and thereof was introduced by the
accountability under the present 2017 amendments and it provided
legal regime, in the presidential that the IEBC would put in place
election, the votes cast at each a complementary mechanism
polling centre were to be counted, for identification of voters and
tabulated and the outcome of that transmission of election results
tabulation announced without that were simple, accurate,
delay by the presiding officer. The verifiable, secure, accountable and
results announced at each polling transparent.
station were to be transmitted to 46. Pursuant to section 44(5) of
the constituency returning officer, the Elections Act, the Elections
who in turn would openly and (Technology) Regulations,
accurately collate the results from 2017 were promulgated, they
the various polling stations in the provided for, among other
constituency and then promptly things, information security, data
announce the outcome of the availability, accuracy, integrity,
collation. From the constituency confidentiality, and retention of
tallying centre, the returning the voting materials for three
officer would electronically years following the elections.
transmit the results directly to the They also provided for the
national tallying centre. establishment of the Elections
44. The amendments to the Elections Technology Advisory Committee
Act were intended to cure the composed of members and staff
mischief of the spectacle of all of the Appellant, Registrar of
the 290 returning officers from Political Parties, representatives
each constituency and 47 county of majority and minority
67
parties in Parliament, Political to the national tallying centre.

Parties Liaison Committee and Regulations 73 to 90 thereof
Information Communication enumerated the process of
Technology professional bodies. counting of votes, declaration and
The mandate of the Committee transmission of results.
included, advising the Appellant 49. Once the presiding officer closed
on adoption and implementation the polling station at the end of
of election technology policies. It voting, he was required, in the
had the power to engage experts presence of the candidates or
or consultants. agents to open each ballot box
47. With such an elaborate system, and empty its contents onto the
the electronic transmission of the counting table or any other facility
already tabulated results from the provided for the purpose; cause
polling stations, contained in the to be counted, the votes received
prescribed forms, was a critical by each candidate by announcing
way of safeguarding the accuracy the name of the candidate in
of the outcome of elections. The whose favour the vote was cast;
Appellant or any of its officers display to the candidates or agents
could not vary or even purport to and observers the ballot paper
verify those results, particularly sufficiently for them to ascertain
when it was clear that, by article the vote; and put the ballot paper
86 (d) of the Constitution of at the place on the counting table,
Kenya, section 2 of the Election or other facility provided for
Act and regulation 93(1) of the this purpose, designated for the
Election (General) Regulations, candidate in whose favour it was
2012, all election materials, cast. The total number of votes
including ballot boxes, ballot cast in favour of each candidate
papers, counterfoils, information was then recorded in a tallying
technology equipment for voting, sheet in Form 33.
seals and other materials, were 50. At that stage any candidate or
to be retained in safe custody by agent could dispute the inclusion
the returning officers for a period in the count, of a ballot paper; or
of three years after the results of object to the rejection of a ballot
the elections had been declared, paper. During the exercise, all the
unless required in proceedings ballot papers that did not bear
in court. Under section 13 of the the security features determined
Election Offences Act, it was a by the Appellant ; or which were
criminal offence punishable, on marked against the names of more
conviction, by a fine not exceeding than one candidate; or on which
Kshs 500,000 or to imprisonment anything was written or so marked
for a term not exceeding 5 years as to be uncertain for whom the
or both, to interfere with election vote had been cast, would be
material by destroying, concealing marked with the word “rejected”
or mutilating it. and not counted. If an objection
48. The information contained in Form was raised to the rejection, the
34, which had since been replaced presiding officer was to add the
following the promulgation of the words “rejection objected to”.
Elections (General) (Amendment) 51. The presiding officer would
Regulations, 2017, was primary eventually take stock of the
information that was itself arrived number of ballot papers issued to
at after an elaborate process at him by the Appellant before the
two levels of the electoral system commencement of the voting, the
to safeguard the integrity of the number of ballot papers issued to
outcome before it was transmitted voters; the number of spoilt ballot
68
papers; and the number of ballot of votes. A copy of the results was
papers remaining unused. In the to be affixed at the entrance to the
presence of the candidates or their polling station.
agents the presiding officer had 54. In a Presidential election, where
to seal, in separate tamper-proof two or more candidates were
envelopes the spoilt ballot papers, nominated, were held in each
if any, the marked copy register constituency and the foregoing
and the counterfoils of the used process was undertaken at the
ballot papers. The candidates or constituency, the details of which
their agents, who wished to do so, were recorded at the end of
were permitted to affix their seals the exercise in Form 34. It was
to the envelope. Thereafter the inconceivable that those details
presiding officer was to, as soon arrived at after such an elaborate
as practicable, deliver the ballot process could be viewed as
boxes, and the tamper-proof provisional, temporary or interim.
sealed envelopes to the returning The inescapable conclusion was
officer who was to take full charge that it was final and could only be
of them for safe custody from that disturbed by the election court.
stage on.
55. The polling station was the true
52. Authorised agents of a political locus for the free exercise of
party or a candidate were the voters’ will. The counting
permitted to attend at the venue of of the votes as elaborately set
vote counting within the polling out in the Elections Act and the
station. A person nominated as Election (General) Regulations,
a deputy to the candidate, where with its open, transparent and
applicable, police officers on duty, participatory character using the
observers and representatives ballot as the primary material,
of the media, duly approved meant, as it had to, that the count
or accredited by the Appellant there was clothed with a finality
could also be present during vote not to be exposed to any risk of
counting. variation or subversion.
53. The presiding officer, the 56. It was fallacious and it flew in the
candidates or agents were required face of the clear principles and
to sign the declaration in respect of values of the Constitution to claim
the presidential elections in Form that the chairperson of the IEBC
34. Each political party, candidate, could alone, at the national tallying
or their agent were supplied with a centre or wherever, purport to
copy of the declaration before the confirm, vary or verify the results
results were communicated to the arrived at through an open,
returning officer. Any candidate transparent and participatory
or agent, if present when the process.
counting was completed, could
require the presiding officer to 57. Subject to article 138(3) of the
have the votes rechecked and Constitution, the Appellant, which
recounted or the presiding officer was represented at all the polling
could on his or her own initiative, stations, constituency and county
have the votes recounted, at most tallying centres could only declare
twice. Until the candidates and the result of the presidential
agents present at the completion vote at the constituency tallying
of the counting had been given centre after the process alluded
a reasonable opportunity to to was complete, that is, after
exercise the right for a recount tallying and verification. It was
no steps could be taken on the equally instructive that regulation
completion of a count or recount 83(3) of the Election (General)
69
Regulations, 2012 recognised the the forms 34, 35, 36, 37 or 38 had
finality of the results declared at been duly signed by the authorized
the constituency. It stated that the returning officer, they became
decisions of the returning officer instruments which could not be
on the validity or otherwise of a challenged save through election
ballot paper or a vote was to be petition.
final except in an election petition. 61. By dint of Article 138(2) of the
58. The words “announced” and Constitution, if two or more
“declare” were not used as terms candidates for presidential
of art; and they had been used election were nominated, then
loosely in the Regulations. The an election had to be held in
Constitution and the Elections Act each constituency whereat the
did not define what amounted to a returning officers played the most
declaration of election results. The critical role in the overall result of
meaning of the term ‘declaration’ a presidential election.
could only be inferred from the 62. The Chairperson of the IEBC
various contexts in which it had had a significant constitutional
been used in the Constitution, the role under article 138(10) of the
Elections Act and the Regulations Constitution as the authority
to the Elections Act. with the ultimate mandate of
59. The word “declared” in article 138 making the declaration that
of the Constitution had been used brought to finality the presidential
to depict the finality culminating election process. Before he made
in the declaration of the winner that declaration his role was to
of an election. “Declaration” took accurately tally all the results
place at every stage of tallying. exactly as received from the 290
For example, the first declaration returning officers country-wide,
took place at the polling station; without adding, subtracting,
the second declaration at the multiplying or dividing any
Constituency tallying centre; and number contained in the two
the third declaration at the County forms from the constituency
tallying centre. The declaration of tallying centre. If any verification
election results was the aggregate or confirmation was anticipated, it
of the requirements set out in the had to relate only to confirmation
various forms, involving a plurality and verification that the candidate
of officers. The finality of the set of to be declared elected president
stages of declaration was depicted had met the threshold set under
in the issuance of the certificate Article 138(4) of the Constitution,
in Form 38 to the winner of the by receiving more than half of all
election. That marked the end of the votes cast in that election; and
the electoral process by affirming at least twenty- five per cent of the
and declaring the election results, votes cast in each of more than
which could not be altered or half of the counties.
disturbed by any authority. 63. The only other verification
60. The final declaration of election or confirmation that could be
results was by the issuance of the envisaged was for instance, the
certificate in Form 38 to the winner number of ballot papers issued
of the election. That certificate out to the constituencies, the
was issued by the returning number of ballot papers issued
officer. If a declaration had to be to and correctly used by voters,
in a formal instrument, the forms the number of spoilt ballot
that contained the results of the papers and the number of ballot
elections at every level constituted papers remaining unused, which
such formal instruments. When process was verified against
70
Form 34. Any changes to what 138 of the Constitution dealt

was counted, confirmed and with events at the polling stations
verified at the constituency where votes were counted, tallied,
level before transmission was verified and declared. Reference
manifestly outside his powers to the IEBC in article 138(3)(c)
and competence. It could well be of the Constitution was not to be
tantamount to a serious assault on construed to mean the chairperson
the will of the people of Kenya and but rather, the returning officers
an impermissible breach of the who were mandated, after counting
Constitution. the votes in the polling stations,
64. Section 39 (2) and (3) of the to tally and verify the count and
Elections Act were not changed, declare the result. The IEBC,
with the result that the Appellant as opposed to its chairperson,
was empowered announced the upon receipt of prescribed forms
provisional results of an election containing tabulated results for
before determining and declaring election of President electronically
the final results. The retention transmitted to it from the near
of section 39 (2) and (3) of the 40,000 polling stations, was
Elections Act served only to sow required to tally and “verify” the
mischief and confusion after it results received at the national
was stipulated quite clearly in tallying centre, without interfering
section (1D) that the chairperson with the figures and details of the
of the Commission was to declare outcome of the vote as received
the results of the election of the from the constituency tallying
President in accordance with centre. At the very tail end of the
Article 138(10) of the Constitution. process, in Article 138(10) of the
Constitution, the chairperson of
65. It was unnecessary to retain the the IEBC then declared the result
impugned provisions. The entire of the presidential election, and
amendment to section 39 was delivered a written notification
intended to align it with Articles of the result to the Chief Justice
81, 82, 86, 101, 136 and 138 and to the incumbent President.
of the Constitution to provide That was how circumscribed and
for procedure at the general narrow the role of the chairperson
elections, especially the role of the of the IEBC was.
Appellant to conduct the elections,
determine, declare and publish 68. If a dispute were to arise from
the results. By dint of section that election, though conducted in
39(1) of the Act, the Appellant was 290 constituencies, it would not
required to declare and publish the require an aggrieved candidate
results immediately after close of to file 290 petitions. There
polling. To facilitate the conduct was no more substance in that
of elections, the Appellant was argument than there would be in
required to appoint returning a contention that petitions should
officers at the constituency and be filed against all presiding
county levels. officers in their thousands.
66. The intention of Parliament was 69. The IEBC was defined in section
to delineate roles at the three 2 of the Elections Act as well
levels of election determination as section 2 of the Independent
and declaration. This was in Electoral Boundaries Commission
conformity with Article 138 of the Act to mean the Independent
Constitution. Electoral and Boundaries
Commission established under
67. The role of the Chairperson of the Article 88 of the Constitution.
IEBC was circumscribed. Article The IEBC was declared by Article
71
253 to be a body corporate with years following the conviction.

perpetual succession and a seal. There were several mechanisms
It was independent and in the that the IEBC could and had to
performance of its functions, it deploy to eradicate malfeasance
was not subject to the direction or on the part of its staff and officers.
control of any person or authority. 72. The High Court annulled Section
The IEBC consisted, in law of the 39(2) and (3) of the Elections Act
chairperson and six members, and regulations 83(2) and 87(2)
supported by a secretary. (c) of the Elections (General)
70. The chairperson on the other hand Regulations on April 7, 2017.
was appointed under Article 250 of One would have expected the
the Constitution. The chairperson concerned institutions, including
therefore could not be, and was the IENC, to either comply with
not, the IEBC. It was envisaged in the determination of the court
article 86 of the Constitution that or if aggrieved, to challenge it in
for the purpose of conducting an this Court as the Appellant did
election the Appellant would be within two weeks on April 24,
represented at the polling stations 2017. Instead, 14 days following
and constituency tallying centres the delivery of the judgment
by the presiding officers, and the impugned in this appeal, the
returning officers, respectively, Appellant issued a gazette
were appointed by the IEBC. They supplement, being Legal Notice
were in every respect employees No. 72 of April 21, 2017, which
of the Appellant and its agents in made drastic amendments to the
the eyes of the law. Elections (General) Regulations
71. It was as hypocritical as it was 2012, whose effect was clearly to
incongruous for the IEBC to render impotent and circumvent
doubt the competency, proficiency the declaration by the High
and honesty of its own staff as the Court of the inconsistency with
reason for the need to “verify” the the Constitution of section 39(2)
results to ensure they were not and (3) of the Elections Act and
tampered with. The Appellant regulations 83(2) and 87(2)(c) of the
had the opportunity, indeed a Elections (General) Regulations.
duty, to vet all its prospective 73. Form 34C was the one to be used
employees to ensure they passed in place of Form 37 for the final
the integrity test before engaging declaration of the result of election
them. Members and employees of the President at the national
of the Appellant were bound by tallying centre. The new regulation
a code of conduct. In any case 87 of the Elections (General)
apart from the offences related Regulations specified that upon
to voting, or any other election- receipt of Form 34A from the
related offences committed by constituency returning officers
members or employees of the the Chairperson of the Appellant
IEBC created under the Election was to verify the results against
Offences Act, section 30 of Forms 34A and 34B received from
the Independent Electoral and the constituency returning officer
Boundaries Commission Act at the national tallying centre.
made it an offence for a member The controversial regulations
or employee of the Appellant, to 83(2) and 87(2) of the Elections
knowingly subvert the process of (General) Regulations were not
free and fair elections. A person affected by the amendments, and
who was convicted of an election- the object was not difficult to see.
offence was not eligible to hold The High Court had found those
public office for a period of ten regulations to be inconsistent
72
with the Constitution: it was in 77. The people of Kenya did not
bad faith for the Appellant to re- intend to vest or concentrate such
enact them while pursuing the sweeping and boundless powers
instant appeal. in one individual, the chairperson
74. The purpose for which section of the IEBC. The responsibility
39(2) and (3) of the Elections Act of the Appellant to deliver a
and regulations 83(2) and 87(2) credible and acceptable election in
(c) of the Elections (General) accordance with the Constitution
Regulations were promulgated or was so grave and so awesome that
made have the effect of infringing it had to approach and execute
constitutional principles of it with absolute fealty, probity
transparency, impartiality, and integrity. The IEBC had to
neutrality, efficiency, accuracy in all its dealings be truly above
and accountability. suspicion and command respect
of the people of Kenya for whom
75. There was no law that empowered it acted. Much depended on it, the
the chairperson of the IEBC, as present and future peace of the
an individual to alone correct, country.
vary, confirm, alter, modify or
adjust the results electronically 78. The High Court was not at fault
transmitted to the national tallying in holding that to the extent
centre from the constituency that section 39(2) and (3) of the
tallying centres, was to donate Elections Act and regulation
an illegitimate power. Such a 87(2)(c)of the Elections (General)
law would introduce opaqueness Regulations provided that the
and arbitrariness to the electoral results declared by the returning
process, the very mischief the officer were provisional, and to
Constitution sought to remedy. the extent that regulation 83(2)
provided that the results of the
76. Accuracy of the count was retuning officer were subject to
fundamental in any election. confirmation by the IEBC. Those
Voter turnout determined the provisions were inconsistent with
outcome of any electoral contest. the Constitution and therefore
Numbers were therefore not only null and void.
unimpeachable, but they were
everything in an election. The Appeal dismissed.
lowest voting unit and the first
level of declaration of presidential
election results was the polling
station. The declaration form
containing those results was a
primary document and all other
forms subsequent to it were only
tallies of the original and final
results recorded at the polling
station.
73
Feedback For Caseback Service
By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
Justice Ekirapa Aburili Thank you for caseback. i appreciate the

High Court – Nairobi service and believe it will make me a better
Judge.
Thank you for your continued

Justice Fred A.Ochieng
support, by making available to me,
High Court - Nairobi particulars of the decisions made by
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from my decisions.
Hon. Cheruto. C. Thanks alot for the feedback.

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RM–Kitale Law Courts
Hon. Charles Obulutsa.

Eldoret Law courts Thanks for the update, you are doing a good job.
International
Jurisprudence
Presidential Elections Petitions resulting in repeat polls around the
World
By Linda Awuor & Faith Wanjiku
A
presidential election is formally the presidential election petition which resulted
process by which a president of a in an annulment and a fresh election ordered
country is elected. A presidential to be held within 60 days in accordance
election petition is usually an application with Article 140 of the Constitution of
filed by an aggrieved party challenging Kenya, 2010. Kenya is the fourth country
the presidential election. Kenya has had in the world to have annulled a presidential
a presidential election petition in 2013 election. The other three countries that have
which was arguably the first presidential also annulled their presidential elections are
election petition to be heard and decided Austria, Ukraine and the Maldives. In Africa,
on its merits. Previous presidential election however, Kenya is the first.
petitions were decided on technical or
Below is a look at the other countries’
procedural matters such as improper service
presidential election petitions. In addition,
of court documents, failure to properly sign
we also look at Ghana, where a petition
the pleadings, etc. However, the recently
was filed challenging the 2012 presidential
concluded presidential election resulted in a
election.
AUSTRIA
Norbert Hofer v Alexander Van der Bellen
In the name of the Republic
The Constitutional Court, chaired by President Gerhart HOLZINGER, in the presence
of Vice ‐President Brigitte BIERLEIN and the members Markus ACHATZ, Eleonore
BERCHTOLD‐OSTERMANN, Sieglinde GAHLEITNER, Christoph GRABENWARTER,
Christoph HERBST, Michael HOLOUBEK, Helmut HÖRTENHUBER, Claudia KAHR,
Georg LIENBACHER, Rudolf MÜLLER, Johannes SCHNIZER, and Ingrid SIESS‐
SCHERZ
Constitutional Court
W I 6/2016‐125
1st July 2016
Background to the Presidential Election point.
Petition
Evidence as to the Electoral Malpractices
Austria’s Constitutional Court voided the • Counsel for the Freedom Party
results of May 2016 presidential election and argued that postal ballots were
ordered a new vote. The court ruled in favor illegally handled in 94 out of 117
of a petition by the Freedom Party to throw districts.
out the May result based on the mishandling • It alleged that thousands of votes
of thousands of absentee ballots, more than were opened earlier than permitted
under election rules and some were
enough to potentially swing the outcome.
counted by people unauthorised to
The Freedom Party candidate, Norbert do so.
Hofer, lost the election to the former leader • The party also claimed to have
of the Greens, Alexander Van der Bellen, by evidence that some under-16s and
just 30,863 votes or less than one percentage foreigners had been allowed to vote.
75
Decision of the Constitutional Court 6) If infringements of the law were of

an extent that they may have had an
The fundamental rulings of the Constitutional
influence on the election result, it was
Court were as follows:
of no relevance if manipulations had
1) The possibility of postal voting actually occurred or not.
was not unconstitutional and
7) In the districts of Innsbruck-Land,
could therefore remain in effect.
Südoststeiermark, Stadt Villach,
However, infringements of the law
Villach-Land, Schwaz, Wien-
occurred in numerous districts in
Umgebung, Hermagor, Wolfsberg,
the implementation of the system of
Freistadt, Bregenz, Kufstein, Graz-
postal voting.
Umgebung, Leibnitz and Reutte the
2) Activities directly related to the rules governing the implementation
counting of votes must be performed of the postal voting system were not
by the electoral authority as a complied with. The infringements
collegiate body (i.e. by the Chief concerned a total of 77,926 postal
Electoral Officer and the Assistant votes.
Electoral Officer together). This
8) The difference in the numbers of
was required in order to ensure
votes cast for Alexander Van der
transparency in the establishment
Bellen and Norbert Hofer amounted
of the electoral result. The mere
to 30,863 votes. As the number of
reference to the possibility of
votes concerned by the infringements
Assistant Electoral Officers being
by far exceeded 50% of that difference
present was not sufficient, nor was
(15,432 votes), the infringements may
it permitted to delegate these tasks
have had an influence on the election
in advance to the Chief Electoral
result. In the districts of Kitzbühel,
Officer. Auxiliaries who were not
Landeck, Hollabrunn, Liezen,
members of the electoral authority
Gänserndorf and Völkermarkt
may support the latter in its tasks,
the system of postal voting was
provided they did so in the presence
implemented in accordance with the
of the collegiate body. By no means
rules.
must they be allowed to count votes
without being supervised. 9) The infringements of the law in the
implementation of the postal voting
3) Opening the postal ballots was a task
system necessitated a complete
reserved for the district electoral
repetition of the runoff election of
authority as a collegiate body. This
the Federal President. The repetition
also included the “slitting open” of
was necessary for the following
postal ballots, since the definitive
reasons: Citizens who had applied
verification of the postal ballot was
for a postal vote could exercise their
no longer possible if the envelope had
voting right in various ways: by post,
already been opened by unauthorized
but also personally at their own local
persons.
polling station, at another polling
4) In the absence of Assistant Electoral station in their own district, or at a
Officers, auxiliaries were allowed to polling station in a district other than
perform upstream activities, such as their own.
pre-sorting of the postal ballots into
10) As a result, the votes counted in the
those to be included in the counting
individual districts were mixed. For
and those to be discarded as invalid
example: If someone had applied
for obvious reasons of nullity (e.g.
for a postal vote in Linz, but cast
missing signature).
his/her vote personally in Salzburg,
5) For the Constitutional Court it was the vote counted as a valid vote cast
absolutely clear that laws governing in Salzburg. If the Constitutional
an election must be strictly applied. Court were to rule that the election
This was to exclude any abuse and had to be repeated in Linz only, the
manipulation.
76
voter could again apply for a postal 12) In cases relating to elections, as in
vote, but could this time use it to cast others, the Constitutional Court
his/her vote personally at his/her is bound by the rule that it was not
local polling station in Linz. In that allowed to act on its own initiative,
case, the voter would have cast two but could only do so if presented with
valid votes: the first vote counted in a specific occasion.
Salzburg (because in this district the
13) The infringement might lead to a
election is not repeated and the result
situation in which the results of the
remains valid) and the second valid
count and reports thereon were
vote counted at the repeat election
“leaked” and rapidly disseminated,
in Linz. However, one and the same
especially via social media. In the
voter could not have two votes.
case in question, the Austrian Press
Therefore, a repeat election only for
Agency (APA) sent out a report, hours
postal voters, or only in individual
before the closing of the election,
districts, had to be ruled out.
implying that Norbert Hofer was
11) The principle of free elections was likely to win the election and that a
violated if government bodies (the “turnaround” of the result was no
Ministry of the Interior) transmitted longer considered probable.
information received on the results
14) In view of the close result of the
of the count of votes to the Austrian
election, reports on the alleged
Broadcasting Corporation (ORF), the
outcome of the election, based on
Austrian Press Agency (APA), other
counting results transmitted by
media or research bodies before the
official bodies, could have had an
closing of the election, regardless of
influence on the election result.
the conditions required (information
“not to be disclosed” before a certain 15) For this reason as well, the runoff
point in time).The fact that this had election of the Federal President was
been common practice for decades to be repeated in its entirety in all of
was of no relevance. To date, the Austria.The Ministry of the Interior
Constitutional Court has had no had to ensure that such infringements
possibility of pronouncing on the did not occur in the repeat runoff
issue, as this was the first time that the election. Therefore, the practice of
issue had been raised in an electoral transmitting results of the count
challenge. prior to the closing of the election
was to be discontinued.
UKRAINE
Viktor Yanukovych v Viktor Yushchenko, 2004
Supreme Court of Ukraine
Background to the Elections official Central Election Commission results
announced on November 23, the run-off
The Ukrainian presidential election, 2004
election was won by Viktor Yanukovych.
was held on October 31, November 21 and
December 26, 2004. The election was the Law governing Elections
fourth presidential election to take place in
The conduct of the elections of the President
Ukraine following independence from the
of Ukraine is governed by the Constitution of
Soviet Union. The last stages of the election
Ukraine (adopted in 1996), Law of Ukraine
were contested between the opposition
“On Elections of the President of Ukraine”
leader Viktor Yushchenko and the incumbent
(LEPU) (adopted in 2004), Law of Ukraine
Prime Minister Viktor Yanukovych from the
“On the Central Election Commission” and
Party of Regions. As no candidate had 50%
instructions and guidelines issued by the
or more of the votes cast a run-off ballot
Central Election Commission.
between the two-highest polling candidates,
Viktor Yushchenko and Viktor Yanukovych, According to Ukraine’s electoral law, a two-
was held on November 21. According to round system is used to elect the President in
77
which a candidate must win a majority (50% firstly, towards the prevention of
or more) of all ballots cast. usage of the resource of these bodies
during the campaign of this or that
Evidence
candidate for the position of the
The first round of voting was held on October President of Ukraine, secondly, for
31, 2004. The election results were challenged making it impossible to press upon
by Viktor Yushchenko and his supporters voters. Such prohibition was caused
with many international observers claiming by the necessity to create conditions
that the election was rigged. for free will expression of voters
Decision of the Supreme Court during the elections.
The Ukrainian Supreme Court annulled 4) According to the provisions of article

the official run-off results and ordered a 64.15 of the Law, the candidates
repeat of second round ballot. The final re- to the position of the President of
run ballot was held on December 26. Viktor Ukraine who hold offices, including
Yushchenko was declared the winner with those combined, in executive bodies,
52 percent of the vote to Yanukovych’s 44 and bodies of local self-government,
percent. in state, municipal enterprises, in
institutions, organizations, military
The Constitutional Court of Ukraine in units (formations), were prohibited
giving the official interpretation of the to involve into the pre-election
mentioned provisions of the Law, Held: campaign or to use for any type of
1) The elections are one of the forms work related to the pre-election
of direct democracy, the means of campaign individuals subordinated
formation of state bodies and bodies to them (at working time), the
of local self-government by the official transport, communications,
electoral corps. The Constitution equipment, premises, other objects
had fixed the fundamentals of the and resources at the place of
electoral law, having established that employment as well as to use service
the elections to these bodies are free or professional meetings, personnel
and take place on the basis of general, meetings for conducting pre-election
equal and direct electoral right by campaign.
way of secret ballot, and the voters are 5) Provisions of article 64.1.2 of the
guaranteed the free will expression Law of Ukraine On the elections of
(article 71 of the Constitution). the President of Ukraine” was to be
2) One of the stages of the electoral understood so that the officials of the
process was the pre-election executive bodies and bodies of local
campaign, the main objective of which self-government are prohibited to
was to form the will of the voters to participate in pre-electoral campaign
vote for this or that candidate running in any time (working or leisure).
for the position of the President of 6) Provisions of article 64.15 of the
Ukraine. The pre-election campaign Law of Ukraine “On the elections of
could be performed in any form and the President of Ukraine” were to be
way, which did not contradict the understood as follows:
Constitution and the laws of Ukraine
• candidates for the position of the
(article 58.1 of the Law).
President of Ukraine, which held the
3) The Law established certain offices, including those combined,
restrictions as to conducting a pre- in executive bodies and bodies of
election campaign. In particular, local self-government, in state,
according to article 64.1.2 of the Law, municipal enterprises, in institutions,
executive bodies and bodies of local organizations, military units
self-government, their officials and (formations) did not have the right
officers were prohibited to participate to involve at working as well as at
in pre-election campaign. The leisure time the subordinate officials
mentioned prohibition was directed, who worked in executive bodies
78
and bodies of local self-government • “The subordinate persons” of the

for pre-electoral campaign, and at candidates to the position of the
working time with the same purpose President of Ukraine at the place of
– all other subordinate persons employment were individuals who
who worked in the mentioned executed official (labor) duties in the
bodies and subordinate persons executive body, body of local self-
including officials who worked government, institution, organization
in state, municipal enterprises, in or served at the military unit
institutions, organizations, military (formation) and had the subordinate
units (formations); relations with these candidates.
• candidates for the position of the 7) The provisions of article 56.3.4 of
President of Ukraine could not use the Law of Ukraine “On the elections
at working and leisure time the of the President of Ukraine” were
official transport, communications, to be understood as the grounds for
equipment, premises, other objects the Central Election Commission
and resources at the working place to declare a warning to a candidate
as well as service or professional for the position of the President
meetings, personnel meetings for of Ukraine and to the party (bloc)
conducting pre-election campaign; which nominated him/her against
• “the place of employment” of committing by a candidate running
candidates for the position of the for the position of acts prohibited by
President of Ukraine was a specific article 64.15 of the mentioned Law.
body of the executive power, body
of local self-government, state, Annulling the 21 November vote, the judges
municipal enterprise, institution, ruled that the central election commission acted
organization, military unit improperly by declaring PM Yanukovich the
(formation), in which they held an winner.
office, including those combined;
MALDIVES
Supreme Court of the Maldives
Background to the Petition Annullment
2013 Following the original first round on 7
September, the Supreme Court annulled the
A presidential Election was held in the
elections and cancelled the planned second
Maldives in September 7, 2013. As no
round of September 28 on September 27 by
candidate received over 50 percent of the
a vote of four to three after a petition filed
vote, according to the Constitution, the
by a member of Ibrahim’s (a presidential
result was annulled by the Supreme Court
candidate) Jumhoory Party.
and a run-off election had to be held within
21 days. The re-run Presidential Election Run-off
was then held on November 9, 2013. Again,
A run-off election was then scheduled for the
no candidate received over 50 percent of the
following day due to the need to have a new
vote. President Mohamed Nasheed had won
President in place by 11 November. However,
a first round on Sept. 7 with 45.45 per cent
the run-off was postponed to 16 November
of the vote, but fell short of the 50 per cent
by the Supreme Court after Yameen claimed
needed for outright victory.
he needed more time to campaign. The run-
Evidence off was then held on November 16, 2013.
Abdulla Yameen of the Progressive Party of
A confidential police report was cited in
Maldives won the run-off with his share of
the Court claiming 5,623 ineligible voters
the vote rising from 30% in the first round to
had cast votes, including some who were
51% in the second round.
dead, under-age voters, and some using fake
identity cards.
79
GHANA
Nana Akufo-Addo & 2 Others v John Mahama & 2 Others
In the matter of a petition challenging the validity of the election of John Dramani Mahama
as President of the Republic of Ghana pursuant to the presidential election held on 7th and
8th december, 2012.
In the Superior Court of Judicature
In the Supreme Court Accra – A. D. 2013
Background to the Presidential Election votes to be annulled because they

Petition were illegal as voting took place
Ghana had a presidential election in 2012 in those areas without biometric
after which a presidential election petition verification.
was filed by the then flag bearer of the • Duplicate polling station codes, that
New Patriotic Party (NPP), the opposing is to say occurrence of different
candidate, Nana Addo Dankwa Akufo-Addo. results of pink sheets for polling
The election was held on December 7 & 8 stations with the same polling station
(two days because voting was suspended in codes and absence of the signature of
places where biometric verification devices the presiding officer.
broke down and continued the following • Duplicate serial numbers, that is to
day). The results declared on December 9 say occurrence of the same serial
by the Chairman of the EC gave Mahama numbers on pink sheets for two
5,574,761 votes, which translated into 50.7% different polling stations.
of the 10,995,262 votes cast. Nana Akufo- • The NPP Presidential Candidate,
Addo of the NPP received 5,248,898 votes or Nana Akufo-Addo, his running mate
47.74% of the total declared. Dr Mahamudu Bawumia and NPP
Chairman Jake Obetsebi-Lamptey,
The NPP Presidential Candidate, Nana accordingly filed a petition at the
Akufo-Addo, his running mate Dr Mahamudu Supreme Court on December 28,
Bawumia and NPP Chairman Jake Obetsebi- 2012. The respondents were John
Lamptey, accordingly filed a petition at the Mahama (whose election was being
Supreme Court on December 28, 2012. The challenged), the EC (which conducted
respondents were John Mahama (whose the polls) and, later on, the ruling
election was being challenged), the EC (which party, the National Democratic
conducted the polls) and, later on, the ruling Congress (NDC), applied to be joined
party, the National Democratic Congress to the suit.
(NDC), applied to be joined to the suit.
Law Governing Presidential Elections
Evidence as to the Electoral Malpractices
The Constitution of Ghana, 1992
The case presented by the Petitioners
The Constitution of Ghana in Article 63
was that in nearly 46% or 11,916 of the
(3) required that to win outright in the first
26,002 polling stations where voting took
round, a candidate must receive more than
place, the election was marred by gross
50% of the valid votes cast, otherwise the top
and widespread irregularities, infractions
two candidates compete in a second round
and/or malpractices which fundamentally
run-off 21 days later as provided in sub-
impugned the validity of the results in those
article 4.
polling stations as declared by the Chairman
of the Electoral Commission. The following The Constitution in Article 64 (1) also said
irregularities were claimed by the Petitioners: that a citizen who wishes to challenge the
• Over voting. results had to file a petition with the Supreme
• Unknown polling stations, that is Court within 21 days of the results being
to say results recorded for polling declared.
stations that were not part of 26,002 The law provides that the Supreme Court
polling stations provided by the would sit every day to hear the case, including
second respondent in the petition. weekends and public holidays. This was
• Petitioners were asking for 634,825 expected to expedite proceedings. The law
80
further provided that the court was to give (NDC), was validly elected and declared
its ruling not later than 15 days after the end president of the Republic of Ghana in the
of hearing. presidential poll of 7th and 8th December
2012.
The Constitution did not specify how long
the hearing should last but made it clear • The panel unanimously dismissed
that the Supreme Court could overturn the the claims relating to duplicate serial
results of the elections, even after a declared numbers, duplicate polling station
winner had been sworn into office as codes, and unknown polling stations.
president, and could declare a new winner, • Claims of over voting, absence of
compelling the President to step down; call signature of presiding officers and
for the entire election to be run again or absence of biometric verification
require a second-round run-off between the were dismissed by a majority of the
top two candidates. panel.
• A minority ordered for a re-run in
Decision of the Supreme Court the affected areas over over-voting,
The 9-member panel of Supreme court absence of signature of presiding
of Ghana, who heard the presidential officer and absence of biometric
election petition of 28th December 2012, verification.
by unanimous decision ruled that the
incumbent President John Dramani Mahama
of the ruling National Democratic Congress
81
Legislative Updates:
By Christine Thiong’o & Michael Muthuri
T
his is a synopsis of legislation in the form of Bills and Acts of Parliament that have been
enacted in the period between July – September, 2017.
A) ACTS OF PARLIAMENT
ACT DIVISION OF REVENUE ACT, 2017
Act No. 16 of 2017
Commencement 7th July, 2017
Objective The object of this Act is to provide for the equitable division of revenue raised
nationally between the national and county levels of government for the fi-
nancial year 2017/18 in accordance with Article 203 (2) of the Constitution.
ACT BASIC EDUCATION (AMENDMENT) ACT, 2017
Act No. 17 of 2017
Objective This Act amends the Basic Education Act (No. 14 of 2013) by inserting a new
provision under section 39 which entails providing free, sufficient and qual-
ity sanitary towels to every girl child registered and enrolled in a public basic
education institution who has reached puberty and provide a safe and envi-
ronmentally sound mechanism for disposal of the sanitary towels.
ACT NATIONAL CORONERS SERVICE ACT, 2017
Act No. 18 of 2017
Objective The principal objective of the Act is to establish a National Coroners Service
and provide for its powers and functions. It provides for, among other things,
the investigation of reportable deaths; the complementary role of forensic
medical science services to the police in handling investigations involving de-
cedent bodies and scene management; and the participation of the Coroner
at inquests to advise on matters connected with reportable deaths, including
matters related to public health or safety and the administration of justice.
ACT HYDROLOGISTS ACT, 2017
Act No. 19 of 2017
Objective This Act provides for the registration of hydrologists. It establishes the Hy-
drologists Registration Board and lays out its functions, powers, composition
and conduct of business and affairs.
ACT CLINICAL OFFICERS (TRAINING, REGISTRATION AND LICENSING)
ACT, 2017
Act No. No. 20 of 2017
Objective This is an Act of Parliament to make provision for the training, registra-
tion and licensing of clinical officers; to regulate their practice; to provide
for the establishment, powers and functions of the Clinical Officers Council
of Kenya and for connected purposes. This Act repeals the Clinical Officers
(Training, Registration and Licensing) Act (Cap. 260).
82
ACT HEALTH ACT, 2017

Objective This is an Act of Parliament to establish a unified health system; to coor-
dinate the inter-relationship between the national government and county
government health systems; to provide for regulation of health care service
and health care service providers, health products and health technologies.
ACT COUNTY ASSEMBLY SERVICES ACT, 2017
Objective This is an Act of Parliament to make further provisions on the County As-
sembly Service Board and the County Assembly Service as established un-
der the County Governments Act in relation to each county. It provides for
further functions and powers of the Board pursuant to section 12(7)(e) of the
County Governments Act; and the procedure for the appointment of mem-
bers of the Board under section 12(3)(d) of the County Governments Act. The
Act also provides for the procedural functions of the Clerk and his or her
functions as the Secretary to the Board.
ACT NAIROBI INTERNATIONAL FINANCIAL CENTRE ACT, 2017
Commencement 16th August, 2017
Objective This is an Act of Parliament to provide for a legal framework to facilitate and
support the development of an efficient and globally competitive financial
services sector that generates high levels of national savings and investments
through the establishment of the Nairobi International Financial Centre and
the Nairobi International Financial Centre Authority.
ACT PARLIAMENTARY POWERS AND PRIVILEGES ACT, 2017
Objective This is an Act of Parliament to give effect to Article 117 of the Constitution;
to provide for the powers, privileges and immunities of Parliament, its com-
mittees, the leader of the majority party, the leader of the minority party, the
chairpersons of committees and members. It makes provision regulating ad-
mittance to and conduct within the precincts of Parliament.
ACT PRESIDENT’S AWARD ACT, 2017
Objective This is an Act of Parliament to provide for the conferring of awards to young
persons and to provide for the establishment of the President’s Awards Board
of Trustees.
ACT OCCUPATIONAL THERAPISTS (TRAINING, REGISTRATION AND
LICENSING) ACT, 2017
Objective This is an Act to make provision for the training, registration and licensing
of occupational therapists; to regulate their practice; to provide for the es-
tablishment, powers and functions of the Occupational Therapy Council of
Kenya.
ACT KENYA TRADE REMEDIES ACT, 2017
Objective This Act provides for the establishment of the Kenya Trade Remedies Agen-
cy; for the investigation and imposition of anti-dumping, countervailing and
trade safeguard measures.
83
B) NATIONAL ASSEMBLY BILLS
NATIONAL ASSEMBLY BILL COMPUTER AND CYBERCRIMES BILL, 2017

Dated 13th June, 2017
Objective This Bill proposes to provide a framework to prevent and control the threat of
cybercrime, that is, offences against computer systems and offences committed
by means of computer systems. It seeks to enable timely and effective detection,
investigation and prosecution of computer and cybercrimes; and to facilitate
international co-operation in dealing with computer and cybercrime matters.
Sponsor Aden Duale, Leader of the Majority Party.
NATIONAL ASSEMBLY BILL ELECTION LAWS (AMENDMENT) BILL, 2017
Dated 27th September, 2017
Objective The principal object of this Bill is to amend the Independent Electoral and
Boundaries Commission Act, 2011 (No. 9 of 2011), the Elections Act, 2011
(No. 24 of 2011) and the Election Offences Act, 2016 (No. 37 of 2016) to
provide for the proper conduct of the affairs and business of the Independent
Electoral and Boundaries Commission, and for effective management of
elections.
The Independent Electoral and Boundaries Commission (IEBC) Act, 2011 is
amended by deleting and substituting the definition of the term “chairperson”;
the qualifications for appointment as the chairperson of the Commission;
and the quorum of the Commission from five members to not less than three
members.
The Elections Act, 2011 is amended by deleting section 29; addressing the
electronic and manual transmission of the tabulated results of an election for
the President; and clarifying that where there is a discrepancy between the
electronically transmitted and manually transmitted results, the manually
transmitted results shall prevail, among others. Further, the Elections Act is
amended by inserting a new section detailing the procedure at a fresh election.
The Election Offences Act, 2016 is amended by inserting a new section
making it an offence for a presiding or returning officer who fails or refuses to
sign results liable, upon conviction, to imprisonment for a term not exceeding
five years.
Sponsor William Cheptumo, Member of Parliament.
NATIONAL ASSEMBLY BILL ELECTION OFFENCES (AMENDMENT) BILL, 2017
Dated 27th September, 2017
Objective The principal object of this Bill is to amend section 14 of the Election
Offences Act, 2016 to ensure that the section conforms to Article 35 of the
Constitution. Article 35 (1) (a) provides that every citizen has a right of access
to information held by the State. Article 35 (3) further provides that the State
shall publish and publicize any important information affecting the nation.
The Bill seeks to delete subsection (2) of section 14 which limits the right of
access to information held by the State as specified in that Article during the
election period.
Sponsor Aden Duale, Leader of the Majority Party.
84
Legal Supplements
By Christine Thiong’o & Michael Muthuri
T
his article presents a brief summation of Legislative Supplements published in the Kenya
Gazette on matters of general public importance. The outline covers the period between
12th May and 27th July 2017.
DATE OF LEGISLATIVE CITATION PREFACE

PUBLICATION SUPPLEMENT
NUMBER
12th May, 2017 33 Public Private These regulations are made by the
Partnerships (Project Cabinet Secretary in exercise of the
Facilitation Fund) powers conferred by section 68 (4)
Regulations, 2017 of the Public Private Partnerships
Act, 2013.
L.N. 75/2017 The object of the Fund is to
provide financial support for the
implementation of public private
partnership projects under the Act,
which may be provided in the form
of grants, loans, equity, guarantees
and other financial instruments as
may from time to time be approved
by the Cabinet Secretary.
24th May, 2017 39 Movable Property These regulations are made by the
Security Rights (Gen- Cabinet Secretary in exercise of
eral) Regulations, 20I7 the powers conferred by section 88
of the Movable Property Security
L.N. 86/2017 Rights Act, 20l7. They provide for
the electronic registry; access to the
registry; information and procedure
for the notices.
The First Schedule lays out the
relevant forms and notices. The fees
payable under these Regulations are
provided in the Second Schedule.
21st July, 2017 53 Supreme Court The object of these Rules is to enable
(Presidential Election the Court to exercise its exclusive
Petition) Rules, 2017 original jurisdiction under Article
163(3) (a) of the Constitution.
L.N. 113/2017 These Rules apply to petitions in
respect of presidential elections in-
cluding petitions arising upon decla-
ration by the Independent Electoral
and Boundaries Commission of the
President-elect.
The Rules provide for filing,
grounds, and other matters up to
the determination of such petition.
The Schedules deal with provisions
relating to Petitions and Affidavits;
Forms and Fees, respectively.
The Rules also revoke the 2013

Rules, L. N 15/ 2013.
85
21st July, 2017 53 Court of Appeal (Elec- The object of these Rules is to fa-
tion Petition) Rules, cilitate the just, expeditious and
2017 impartial determination of election
petition appeals in exercise of the
L.N. 114/2017 Court’s appellate jurisdiction under
Article 164 (3) of the Constitution.
These Rules apply to the conduct of
appeals from decisions of the High
Court in election petitions and mat-
ters relating thereto.
The Rules deal with the initiation,
filing and service of appeals. They
also deal with the administration of
the Court, duration for hearing and
determination of election petition
appeals.
21st July, 2017 54 Elections (Parlia- The objective of these Rules is to fa-
mentary and County cilitate the just, expeditious, propor-
Elections) Petitions tionate and affordable resolution of
Rules, 2017 elections petitions.
These Rules shall apply to petitions
L.N. 116/2017 in respect of the election of-
(a) Members of Parliament;
(b) County Governors; and
(c) Members of County Assemblies.
The Rules deal with the constitution
of an election court; presentation
and commencement of petitions.
They also deal with the recount of
votes or examination of tallying and
scrutiny of votes. The Schedules deal
with Forms and Fees, respectively.
27th July, 2017 55 Elections (Parlia- These Rules are made by the Rules
mentary and County Committee in exercise of the powers
Elections Petitions) conferred by section 96 of the Elec-
(Amendment) Rules, tions Act. They amend Rules 10 and
20 I 7 11 of the principal Rules.
L.N. 117/2017 Rule 10 of the Elections (Parliamen-

tary and County Elections Petitions)
Rules, 2017, hereafter referred to as
the “principal Rules”, is amended in
paragraph (l) by deleting the word
“seven” and substituting therefore
the word “fifteen”.
Rule 11 of the principal Rules, is

amended in paragraph (l) by deleting
the words “and serving a response
to an election petition within four-
teen days” and substituting therefor
the words ‘a response to an election
within seven days.
86
KENYA LAW REVIEW JOURNAL
VOLUME 5
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analysis of Kenyan law and interdisciplinary academic research on the
law. The focus of the Journal is on studies of the legal system and
analyses of contemporary legal issues with particular emphasis on the
article's substantive contribution to understanding some aspect of the
Kenya's legal system and seeks to include articles showing the interplay
between the law and other disciplines.
Address of Principal office and Contacts:
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P.O. Box 10443 GPO 00100, Nairobi - Kenya
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Issue 38,

July - September 2017

Laws of Kenya Volumes

Head of Law Reporting & Publishing, Design and Layout

www.kenyalaw.org mykenyalaw @mykenyalaw Mykenyalaw

The Hon. Justice David K. Maraga, EGH

Prof Kiarie Mwaura Mr Michael Muchemi,

Ms Jennifer Gitiri, Advocate & Public Officer, Long’et Terer

Members co-opted to serve in ad-hoc Advisory Capacity

Statement By Hon. David K. Maraga, EGH, Chief Justice of

On good governance, the Kenyan Constitution provides when and how

To deliver on its mandate, the Judiciary has a standing

One, intensive refresher training for the Judges and Magistrates

judicial officers of the rank of Senior Resident Magistrate and

Two, the Committee has been at the forefront of reforming the

28 days from the declaration of an election result, rather than from

Other proposals, such as the extension of timelines for hearing

The Elections (Parliamentary and County Elections) Petition

I am happy to launch this important book today, which has been

We are aware that public confidence in the Judiciary as a neutral and

Following the promulgation of the new Constitution in 2010, the

Judiciary has been undergoing a process of transformation to

This is a clear demonstration of our preparedness.

I therefore urge those dissatisfied with results of elections at any level

HON.JUSTICE DAVID K. MARAGA, EGH, CHIEF

The Kenya Law Android app contains:

Selected Statutes of high public interest.

The Kenya Gazette.

Cause List (integrated with Kenya Law’s website).

Case Search (which is integrated with Kenya

www.kenyalaw.org mykenyalaw @mykenyalaw Mykenyalaw

What they said

It is apparent that the resignation of a County Governor from

Odinga & another v Independent Electoral and Boundaries Commission

to be declared duly elected as president- of the Constitution, as the Returning Officer

Further, a random scrutiny of 4,299 Forms of section 83 of the Elections Act;

electoral laws. that the electoral system “shall comply”, inter

Election Offences Act “For the purposes of this section, the

who asserts a fact to prove it. Section 107 law.

out to be rejected. whether or not the two limbs were

objective; to ensure that in conformity as opposed to its chairperson, upon

10 of the Elections (Technology) Respondent could have accessed

54. The Petitioners had discharged the had to be nullified.

as a recount of votes or scrutiny which of their case on apprehensions as to

to be carefully analysed to ensure that of the Elections Act, 2011 expressed

centric cause on the basis of formal leaders in Parliament. That plebiscite

(f) Possible remedies and directions. General principles of the Electoral

commencing from registration electoral process was conducted in

plurality of declaration processes in the declaration of the winner of

34A to the Constituency Returning (S. 44(3) which was in terms of

in the prescribed instruments of results declared in (a) available (b)

a voter secretly marking his/her purposively it could be concluded

53. The petitioner has to discharge the Cabinet Secretaries committed

relevant documents containing all cogent evidence. In the instances in

concerns and in line with principles The qualitative component (the

performance of institutional use his discretion reasonably. The

other is ready to check those actions. responsibility of every State Organ

Statutes – constitutionality of statutes – – rationale of res judicata – elements of

behalf of a candidate or party in other than a tribunal appointed under

provisional results of an election. (f) the registration of

instituted before it. founded on the essential values of

administered in an impartial, taken that the dispute before it

not in disjunctive, but conjunctive rested in the public interests for

apart, the plea of res judicata was were important. Interpretation