Supreme Court upholds the election of William Samoei Ruto as the Fifth President of the Republic of Kenya.

Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment)
Neutral citation: [2022] KESC 54 (KLR)
Supreme Court of Kenya
MK Koome; CJ and P, PM Mwilu; DCJ and VP; MK Ibrahim, SC Wanjala, SN Ndungu, I Lenaola and Ouko; SCJJ
September 5, 2022
Reported by Ribia John
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Significance: Despite petitioners in a presidential election petition having made numerous averments pointing to possible irregularities and illegalities, the pointed illegalities and irregularities have to be of such magnitude as to affect the final result of the presidential election.
Constitutional Law – Independent Electoral and Boundaries Commission – powers of the IEBC – powers of the IEBC vis-à-vis the powers of the chairperson of the IEBC – role of verifying and tallying of votes as received from polling stations countrywide - whether the role of verifying and tallying of votes as received from polling stations countrywide was vested in the IEBC as a corporate entity - whether the role of verifying and tallying of votes as received from polling stations countrywide could be undertaken by the chairperson of the IEBC to the exclusion of other IEBC Commissioners – Constitution of Kenya, articles 138(3)(c) and (10); Elections (General) Regulations, regulation 87(3)
Electoral Law – presidential election petition – constitutional threshold to win a presidential election – 50% + 1 – what was the formula used to determine whether a president-elect attained the constitutional threshold of 50% +1 - whether in making the declaration, the IEBC and its chairperson applied the correct formula - whether the rounding off of votes cast in the Presidential Election by the IEBC and its chairperson as a means of assessing the threshold of 50%+1 was mathematically sound, legal and constitutional - whether the declared President-elect attained 50%+1 of all the votes cast – Constitution of Kenya, 2010 article 138(4)
Electoral Law – presidential election petition – technology used in a presidential election – technology used in transmitting Forms 34A from polling stations to the IEBC Public Portal - whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results - whether there was interference with the uploading and transmission of Forms 34A from the Polling Stations to the IEBC Public Portal - whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents at the Polling Stations.
Electoral Law – Independent Electoral and Boundaries Commission (IEBC) – powers of the IEBC – powers of the chairperson of the IEBC – power to postpone gubernatorial, parliamentary and ward elections in a general election – where the IEBC postponed elections for various seats during the General Elections of August 9, 2022 due to mix-up of ballot papers – claim that the postponement led to low voter turnout - whether the IEBC or its chairperson had the authority to postpone gubernatorial, parliamentary and ward elections in select counties during a general election - whether postponement of gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency by the IEBC resulted in voter suppression to the detriment of the petitioners – whether section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward - Constitution of Kenya, 2010 articles 101, 136(2)(a), 177(1) and 180(1); Elections Act, section 55B
Electoral Law – electoral offences – fraud – ballot stuffing – claim of systematic ballot stuffing - claim that there was a discrepancy between the total votes cast for a presidential candidate vis-à-vis the votes cast for other positions in a general election – claim that the discrepancy amounted to proof of fraud - whether the discrepancies between the total number of votes cast for presidential candidates vis-à-vis the total number of votes cast for other elective positions by itself was an indicator of fraud – whether there was systematic ballot stuffing in the general elections of August 9, 2022 - Election Offences Act, section 5(n).
Statutes – constitutionality of statutes – regulation 87(3) of the Elections (General) Regulations – power to verify and tallying the results of the presidential elections - section 55B of the Elections Act - statutory provisions providing for the postponement of elections in the constituency, county or ward level - whether regulation 87(3) of the Elections (General) Regulations was unconstitutional, to the extent that it purported to vest the power of verification and tallying in the Chairperson of IEBC - whether section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward
Law of Evidence – burden of proof – burden of proof in election petitions - which party bore the burden of proof in election petitions – which party bore the burden of proof to prove electoral offences.

Brief Facts:
On August 9, 2022 Kenya held the third general election under the Constitution of Kenya, 2010 (Constitution). Transmission of the results of the general election was done via the Kenya Integrated Electoral Management System (KIEMS); a technology used in the biometric voter registration, and, on the election day, for voter identification as well as the transmission of election results from polling stations to the National Tallying Centre.
On August 15, 2017, the chairperson of the Independent Electoral and Boundaries Commission (IEBC) (4th respondent) declared the 1st respondent, William Samoei Ruto, the Presidential Candidate for the United Democratic Alliance Party, (1st respondent) the president elect with 7,176,141 votes (50.49% of presidential votes cast) and the 1st petitioner, Raila Amollo Odinga as the runner’s up with 6,942,930 votes (48.85% of presidential votes cast).
Aggrieved by the results and the process by which the results were obtained and declared, the 1st petitioners, Raila Odinga and Martha Karua, who were the presidential and deputy presidential candidates respectively of the Azimio La Umoja Coalition of parties filed the instant petition challenging the declared result of that Presidential election (the election). Alongside the 1st petitioners were a bundle of 6 other petitioners that also challenged the result of the presidential election; in total they filed 9 presidential election petitions.
The 1st, 3rd and 4th petitioners in the consolidated Petition, challenged the technology used by IEBC during the 2022 General Election. They pleaded that the manner in which technology was deployed and utilized fell short of the prescribed constitutional and statutory standards. As regards the audit of the Register of Voters, they urged that IEBC, pursuant to its Elections Operations Plan, committed itself to conducting an audit of the Register of Voters by March 31, 2022. To the contrary, they alleged, it only publicly availed the audit report on its website on August 2, 2022, 7 days to the election.
In response, IEBC submitted that the electoral system met the constitutional threshold; that all necessary information was accessed only by authorized persons; the information was accurate, complete and protected from malicious modification either by authorized or unauthorized persons; it maintained an audit trail on activities related to information; and the information was available and could be authenticated through the use of various security features.
The 1st petitioners further alleged that the results of the presidential election were staged. They contended that a person who had access to the Result Transition System (RTS), intercepted, detained or stored Forms 34A temporarily to convert or manipulate them before uploading them on IEBC’s public portal.
To rebut the allegation, IEBC and its chairperson denied staging and unauthorized intrusion of the RTS. In that regard, they urged that every image of Forms 34A was uploaded immediately after the transmitted result form was received as evinced by the time stamp.
The petitioners also challenged the authority and the decision of the IEBC or its chairperson to postpone the gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency. They contended that the IEBC had no jurisdiction to postpone elections in those areas. They further contended that section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward contrary to the Constitution. They contended that the postponement undermined the conduct of free, fair and credible elections by depriving the voters an opportunity to vote for all the candidates on the date stipulated by the Constitution. The 1st and 3rd petitioners also believed that elections were deliberately postponed in Kakamega and Mombasa counties. It was alleged that those areas were considered to be 1st petitioner’s strongholds, and as such, the postponement of elections worked to his disadvantage and handed a benefit to the 1st respondent.
Those assertions were denied by IEBC and its Chairperson. They however, admitted that they experienced confusion with the printed ballot papers and explained that they only discovered the mix-up on the eve of the Election when the ballot papers were being distributed to the polling stations; that as a practice, ballot papers could only be opened on the eve of the Election Day to avoid any mischief; and that by the time the mix-up was discovered, it was logistically impossible to print and replace the ballots papers in time for the election.
The petitioners also contested the formula used by the IEBC or its chairperson to declare that the 1st respondent had obtained the threshold of 50% + 1 of the votes cast in the presidential election. In particular, they challenged the rounding off. They contended that the rounding off of votes cast in a Presidential Election as a means of assessing the threshold under article 138(4) of the Constitution killed and birthed voters, which was illegal and unconstitutional.
Lastly the petitioners challenged the results of the presidential election on account of the opaque nature of the verification exercise at the National Tallying Center. On August 15, 2022 as the public waited for the chairperson of the IEBC to declare the final result, Kenyans found themselves watching a split screen scenario on their television sets. On one part of the screen was the chairperson, readying himself to declare the result of the presidential election; on the other part of the screen were the 5th to 8th respondents (the 4 Commissioners) on the lawns of the Serena Hotel-Nairobi, from where they announced that they would not “own” the results that were soon to be declared by their chairperson. The 4 commissioners termed the results “opaque” due to the manner in which the chairperson had been conducting the verification and tallying exercise. They contend that by rejecting IEBC’s results on grounds of opaqueness of the verification and tallying process, they called into question, the credibility of the entire election. They further submitted that being in the majority out of the seven-member Commission, their view should prevail and the election should be nullified. It was the petitioners’ argument, therefore, that a dysfunctional Commission could not deliver a credible election.

Issues:
  1. Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.
  2. Whether there was interference with the uploading and transmission of Forms 34A from the polling stations to the IEBC Public Portal.
  3. Whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents at the polling stations.
  4. Whether the IEBC acted ultra vires their powers in postponing gubernatorial, parliamentary and ward elections in select counties during a general election due to some unforeseen hindrances.
  5. Whether postponement of gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency by the IEBC resulted in voter suppression to the detriment of the petitioners.
  6. Whether the role of verifying and tallying of votes as received from polling stations countrywide could be undertaken by the chairperson of the IEBC to the exclusion of other IEBC Commissioners.
  7. Whether regulation 87(3) of the Elections (General) Regulations was unconstitutional, to the extent that it purported to vest the power of verification and tallying in the chairperson of IEBC.
  8. Whether the discrepancies between the total number of votes cast for presidential candidates vis-à-vis the total number of votes cast for other elective positions by itself was an indicator of fraud.
  9. Which party bore the burden of proof in election petitions?
  10. Whether the IEBC carried out the verification, tallying and declaration of results in accordance with article 138(3)(c) and 138(10) of the Constitution.
  11. Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with article 138(4) of the Constitution.
  12. Whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election.

Relevant Provisions of the Law.
Constitution of Kenya, 2010.
Article 138(3)(c), (4) and (10).
138. Procedure at presidential election
(3) In a presidential election—
(c) after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.

(4) A candidate shall be declared elected as President if the candidate receives—
(a) more than half of all the votes cast in the election; and
(b) at least twenty-five per cent of the votes cast in each of more than half of the counties.
…
(10) Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall—
(a) declare the result of the election; and
(b) deliver a written notification of the result to the Chief Justice and the incumbent President.
Elections Act, No. 24 of 2011
Section 55B
55B. Postponement of elections by the Commission
(1) The Commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county or ward for such period as it may consider necessary where —
(a) there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date;
(b) it is impossible to conduct the elections as a result of a natural disaster or other emergencies,
(c) that there has been occurrence of an electoral malpractice of such a nature and gravity as to make it impossible for an election to proceed.
(2) Where an election is postponed under subsection (1), the election shall be held at the earliest practicable time.
(3) Notwithstanding the provisions of this section, the Commission may, if satisfied that the result of the elections will not be affected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made.
Elections (General) Regulations.
Regulation 87(3)
87. Returns of persons elected.
(3) Upon receipt of Form 34A from the constituency returning officers under sub regulation (1), the Chairperson of the Commission shall—
(a) verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre;
(b) tally and complete Form 34C;
(c) announce the results for each of the presidential candidates for each County;
(d) sign and date the forms and make available a copy to any candidate or the national chief agent present;
(e) publicly declare the results of the election of the president in accordance with Articles 138(4) and 138(10) of the Constitution;
(f) issue a certificate to the person elected president in Form 34D set out in the Schedule; and
(g) deliver a written notification of the results to the Chief Justice and the incumbent President within seven days of the declaration; Provided that the Chairperson of the Commission may declare a candidate elected as the President before all the Constituencies have delivered their results if in the opinion of the Commission the results that have not been received will not make a difference with regards to the winner on the basis of Article 138(4)(a) and (b) of the Constitution; and Kenya Subsidiary Legislation, 201 7 379 (h) in the case of the other elections, whether or not forming part of a multiple elect ion, publish a notice in the Gazette, which may form part of a composite notice, showing the name or names of the person or persons elected.

Held:
  1. Lack of trust in the electoral system had endured in Kenya for a long time. That led to the introduction of electoral technology via section 44 of the Elections Act, 2011. Under the Elections Act, IEBC was enjoined to adopt technology in the electoral process.IEBC developed a technology known as the Kenya Integrated Electoral Management System (KIEMS) making Kenya’s election process hybrid as it employed both technology and manual processes.
  2. The technology deployed by IEBC did not fail the standard of article 86(a) of the Constitution on integrity, verifiability, security and transparency for the following reasons:
    1. whereas it was true that the KIEMS kit failed in 235 polling stations, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly filled. That happened successfully in Kibwezi West Constituency and parts of Kakamega County.
    2. While the Audit Report was released to the public seven days before the August 9, 2022 election, the register of voters was used at the election without any apparent anomalies.
    3. Smartmatic was procured to provide the necessary technological infrastructure as IEBC did not have the capacity to do so. No credible evidence meeting the requisite standard of proof of access to the system by unauthorized persons was adduced by the petitioners.
    4. The scrutiny Report prepared by the Registrar of the Supreme Court (the Report) (the Registrar) did not reveal any security breaches of the IEBC’s RTS.
    5. IEBC successfully deployed a Biometric Voter Register (BVR) system which captured unique features of a voter’s facial image, fingerprints and civil data, to register and update voter details across the country and in the diaspora. Those features were unique to each voter.
    6. In compliance with section 6A of the Elections Act, 2011, IEBC opened the register of voters for verification of biometric data by members of the public for a period of 30 days. Thereafter, the Register was revised to address issues arising from the verification exercise. KPMG then audited the register and the inconsistencies and inaccuracies identified during the Audit were successfully addressed.
  3. No credible evidence was presented to prove that anyone accessed the result transmission system (RTS) to intercept, detain or store Forms 34A temporarily before they were uploaded onto the Public Portal. The allegation that 11,000 Forms 34A were affected by staging was not proved.
  4. The allegation that IEBC, its officials and strangers used a tool to tamper with the Forms 34A before converting them to the Portable Document Format (PDF) format that eventually appeared on the Public Portal was sufficiently explained when IEBC demonstrated how KIEMS captured and transmitted the image of Form 34A. The allegation was dismissed. The transmission logs produced by the petitioners were of no probative value. The Registrar of the Supreme Court’s Report showed that the original Forms 34A from the contested polling stations which were allegedly intercepted were exactly the same as those on the public portal and the certified copies presented to the Supreme Court under section 12 of the Supreme Court Act, 2011. The allegation that the integrity of the Public Portal was compromised was disproved by evidence of consistent attributes such as unique time stamps, uniform PDF conversions at the polling stations, correct polling station mapping and consistent KIEMS reporting from verification to transmission of results.
  5. The RTS was configured on a Virtual Platform Network (VPN) and the SIM cards locked to a specific polling station. The server was also configured to accept results only from authorized and properly mapped KIEMS kit. The petitioners failed to produce credible evidence to the contrary. A review of some of the logs presented as evidence of staging showed that they were either from logs arising from the 2017 Presidential Election or were outright forgeries. There was no evidence of a man in the middle server configured to the IEBC’s VPN network; and no evidence was produced to show that the Chairperson of IEBC and staff were part of the alleged conspiracy to stage the transmission process.
  6. There were no significant differences captured between the Forms 34A uploaded on the public portal and the physical Forms 34A delivered to Bomas (National Tallying Center) that would have affected the overall outcome of the Presidential Election. No credible evidence was presented to support the allegation that Forms 34A presented to agents differed from those uploaded to the Public Portal. The Report by the Registrar confirmed the authenticity of the original forms in the sampled polling stations.
  7. The affidavit evidence presented by the petitioners, while containing sensational information, were not credible as the Registrar’s Report confirmed that all the Forms 34A attached to those affidavits and purportedly given to them by agents at select polling stations were significantly different from the originals, certified copies and those on the public portal. The purported e affidavit evidence was not only inadmissible, but were also unacceptable. It had been established that none of the agents on whose behalf the forms were being presented swore any affidavit; that there was nothing to show that they had instructed both Celestine Opiyo and Arnold Oginga (counsel for the petitioners) to act for them. Yet the two had gone ahead to depone on matters that were not within their knowledge.
  8. The Supreme Court could not countenance that type of conduct on the part of counsel who were officers of the court.Affidavits filed in court had to deal only with facts which a deponent could prove of his own knowledge. As a general rule, counsel were not permitted to swear affidavits on behalf of their clients in contentious matters because they ran the risk of unknowingly swearing to falsehoods and may also be liable to cross-examination to prove the matters deponed. Sections 113 and 114 of Penal Code provided that swearing to falsehoods was a criminal offence, and it was an offence to present misleading or fabricated evidence in any judicial proceedings. One of the most serious losses an advocate may ever suffer was the loss of trust of Judges for a long time. Such conduct amounted to interference with the proper administration of justice.
  9. The contents of the affidavit of John Mark Githongo, which was alleged to contain forgeries, were dismissed for not meeting the evidential threshold. They contained no more than incredible and hearsay evidence. No admissible evidence was presented to prove the allegation that Forms 34A were fraudulently altered by a group situated in Karen under the direction of persons named in the affidavit and video clip attached to it. His two affidavits amounted to double hearsay, and incapable of being proved at each layer.
  10. The Form 34A for Gacharaigu Primary School which was presented Jose Carmago, accessed the RTS and interfered with the result contained therein turned out to be no more than hot air. The court was taken on wild goose chase that yielded nothing of probative value.
  11. The KIEMS kit relating to Psongoywo Primary School which bore the same serial number with another was admitted by IEBC as an inadvertent manufacturer’s error. The two kits had other identifying features that were markedly different including the time stamps and polling code. Nothing turned on that anomaly. There was no difference between Forms 34A uploaded on the IEBC Public Portal, those received at the National Tallying Centre, and those issued to the candidates’ agents at the Polling Stations.
  12. IEBC postponed elections for various seats during the General Elections of August 9, 2022 due to mix-up of ballot papers in the above named electoral units. Section 55B of the Elections Act, 2011 provided for circumstances when elections could be postponed in a particular electoral unit including in cases of emergency. The 3rd respondent had the requisite power to postpone election in the constituencies, counties and wards in question.
  13. Voter suppression was recognized as a political strategy which took many forms but whose practical effect was ultimately to reduce voting by deliberately discouraging or preventing targeted groups of people from exercising their right to vote and thereby influence the outcome of an election. It went against the letter and spirit of article 38 which guaranteed every citizen the right to make political choices based on universal suffrage.
  14. It had not been shown that, by postponing elections in the named electoral units, IEBC acted in bad faith or was influenced by irrelevant factors and considerations. The postponement was occasioned by a genuine mistake, which could have been avoided had the members and staff of the IEBC been more diligent when they went to inspect the templates in Athens, Greece where the printing of ballot papers was undertaken.
  15. There was no basis for the court to conclude that the postponement of the elections affected voter turnout as a consequence of which the 1st petitioner, alone, as a presidential candidate suffered a disadvantage. The nature of the ballot being an individual decision and secret, there may be other variables to which the turnout in the named units could be attributed. 2022’s General Election recorded one of the lowest turnout since the reintroduction of multi- party political system, some 30 years ago. If there was a low voter turnout, it affected all the six categories of candidates and its explanation lay elsewhere but certainly not a calculated suppression. There was no nexus between the postponement of elections and voter turnout in the affected units, the claim was a red herring. There was no proof that the postponement resulted in voter suppression to the detriment of the 1st petitioner.
  16. The person who asserted a fact had to prove it casts the burden upon the 1st petitioner to demonstrate that there were instances of ballot stuffing of such a magnitude as to justify the nullification of the Presidential Election.Ballot stuffing, which was the illegal addition of extra ballots, was a type of electoral fraud aimed at swinging the results of an election towards a particular direction. Not a single document had been presented by the 1st petitioner to prove systematic ballot stuffing. A figure of 33,208 votes relied on in that claim was based on unproven hypothesis that since the number of votes cast for President was higher than those for the other positions then, without more, it had to follow that there was fraud.
  17. Fraud was a serious criminal offence and had to be proved beyond reasonable doubt. Under section 5(n) of the Election Offences Act, it was an offence for a person to vote more than once in any election. IEBC had proffered a plausible explanation for the vote differential. There were categories of voters who only voted for the President, such as prisoners and Kenyans in the diaspora. There were an insignificant number of stray votes, whose combined effect could not justify nullification of the election.
  18. A General Election in Kenya comprised of 6 different and separate elections held concurrently on the same day. Such elections were held by secret ballot and one could not predetermine the voter turnout or how voters would vote in each election. None of the parties had flagged anything so significant that it would have affected the outcome of the presidential election vis á vis the other five elections held on that day. There were no unexplainable discrepancies between the votes cast for Presidential candidates and other elective positions.
  19. Pursuant to article 138(3)(c) of the Constitution, the power to verify and tally Presidential Election results as received at the National Tallying Centre, vested not in the chairperson of IEBC, but in the Commission itself. The latter carried out the exercise through its secretariat staff, technical personnel, and any other persons hired for that purpose under the oversight and supervision of the chairperson, and other members of the Commission.
  20. The chairperson of the IEBC could not arrogate to himself the power to verify and tally the results of a Presidential Election, to the exclusion of the other members of the Commission. Article 138(10) of the Constitution, although the power to declare the result of a Presidential Election after verification and tallying, was vested in the Chairperson, he did so only as a delegate of the Commission. To the extent that regulation 87(3) of the Elections (General) Regulations purported to vest the power of verifying and tallying Presidential Election results, as received at the National Tallying Centre, solely on the Chairperson to the exclusion of other members of the Commission, the same was contrary to and inconsistent with the provisions of the Constitution.
  21. Apart from their eleventh-hour denunciation of the verification and tallying process, and their averments regarding the conduct of the Chairperson, the four Commissioners had not placed before the court, any information or document showing that the elections were either compromised or that the result would have substantially differed from that declared by the Chairperson of IEBC. They had not explained why they participated in a verification process when they knew that it was opaque up until the last minute.
  22. The 4 Commissioners acknowledged that the entire election had been managed efficiently and credibly. The chairperson did not make matters any better by maintaining a stoic silence even as things appeared to be falling apart. There was a serious malaise in the governance of an institution entrusted with one of the monumental tasks of midwifing our democracy. An institution that needed far-reaching reforms.
  23. To nullify an election on the basis of a last-minute boardroom rapture between the chairperson of the Commission and some of its members in the absence of any evidence of violation of the Constitution and electoral laws; to upset an election in which the people had participated without hindrance, as they made their political choices pursuant to article 38 of the Constitution would be tantamount to subjecting the sovereign will of the Kenyan people to the quorum antics of the IEBC. The instant court was incapable of such action. The dysfunctionality at the IEBC impugned the state of its corporate governance but did not affect the conduct of the election itself. Notwithstanding the divisions apparent between the chairperson and the 4 Commissioners, IEBC carried out the verification, tallying, and declaration of results in accordance with article 138 (3)(c) and (10) of the Constitution.
  24. The case made by the 6th petitioners concerned a data-specific threshold enunciated under article 138(4) of the Constitution without the attainment of which, there could be no declaration. That was the ultimate yardstick for determining the winner in a Presidential contest. Rejected votes could not be taken into account when calculating whether a Presidential candidate attained 50% +1 of votes cast in accordance with article 138 (4) of the Constitution.
  25. In the case of data-specific electoral requirements (such as those specified in article 138(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof had to discharge it beyond any reasonable doubt. The assertion by the 6th petitioner that the percentage voter turnout was predicated on the uncorrected percentage given by the Chairperson of IEBC, was negated by evidence adduced to prove the correction. The 6th petitioner based his percentage of voter turnout on the total number of registered voters while the Chairperson of IEBC made reference, in the press briefing, to the number of registered voters who were identified through the KIEMS kits, progressively. The rounding off done by IEBC and its Chairperson was correct.
  26. The petitioners did not provide a watertight case to warrant the setting aside of the results of the Presidential Election on the basis of not having met the threshold provided under article 138(4)(a) of the Constitution. The formula predicated on the number of voters identified through the KIEMS kit progressively and used by IEBC and its Chairperson to generate a percentage of 64.76% was correct.
  27. The Chairperson of IEBC applied the formula in article 138(4) of the Constitution which was:

    Given the numbers that were presented to us by IEBC and its chairperson, that would translate to:
  28. 7,106, 569 was less than 7,176,141 which represented the number of votes received by the 1st respondent. On the basis of the above formula and from the numbers provided by IEBC and its Chairperson, and the declaration by the Chairperson of the President-elect on August 15, 2022, the declared President-elect attained 50%+1 of all the valid votes cast in accordance with article 138(4) of the Constitution.
  29. Although the petitioners had provided numerous averments pointing to possible irregularities and illegalities, the pointed illegalities and irregularities were not of such magnitude as to affect the final result of the presidential election.
  30. The Supreme Court could only make the following orders when determining the validity of a presidential election petition under article 140 Constitution:
    1. in the event the court determined that the election of the President-elect was invalid, it had to make an order nullifying the election. Consequently, it had also to make an order directing IEBC to hold a fresh election within sixty days after the determination.
    2. Should the court determine that the election of the president-elect was valid, it was to issue a declaration to that effect. The court would then as a matter of course, make an order dismissing the petition, with or without costs as the case may be.
  31. The court could not assume jurisdiction that went beyond the purview of articles 163(3) and 140 of the Constitution. However, nothing stopped the Court from issuing orders or reliefs by way of recommendations.
  32. Since 2013, the Supreme Court had issued many recommendations arising from the determination of three petitions that challenged the election of the president-elect. The recommendations were meant to improve Kenya’s electoral landscape and hence aid in the development of Kenya’s democracy. The court had been greatly aided by the contributions of amici curiae. The court placed a heavy premium on the amici-briefs that were filed by those it admitted in such capacity.
  33. Petitions dismissed.
    Orders:
    1. The Presidential Election Petition No. E005 of 2022, as consolidated with Presidential Election Petition Nos. E001, E002, E003, E004, E007 and E008 of 2022 was dismissed.
    2. The election of the 1st respondent as President-elect to be valid under article 140(3) of the Constitution.
    3. Each party would bear their costs.


Kenya Law
Case Updates Issue 004/22-23
Case Summaries

CIVIL PRACTICE AND PROCEDURE

Inclusion of IEBC Commissioners as respondents in the Presidential Election Petition did not violate section 15 of the IEBC Act which insulated them from being personally liable for any acts done in good faith in execution of the IEBC’s powers.

Odinga & 4 others v Independent Electoral Boundaries Commission & 7 others (Presidential Election Petition E005, E002 & E004 of 2022 (Consolidated)) [2022] KESC 43 (KLR) (29 August 2022) (Ruling)
Neutral citation: [2022] KESC 43 (KLR)
Supreme Court of Kenya
MK Koome, CJ and P; PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala, NS Ndungu, I Lenoala, W Ouko; SCJJ
August 29, 2022
Reported by John Ribia

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Significance: Section 15 of the IEBC Act could not be used as a shield to suppress evidence in a presidential election petition by IEBC Commissioners.

Civil Practice and Procedure –parties to a suit – parties to a presidential election petition – IEBC Commissioners – whether IEBC Commissioners could be included as respondents in their personal capacity in the Presidential Election Petition - whether the inclusion of IEBC Commissioners as respondents in the Presidential Election Petition violated the principle that Commissioners of an independent constitutional body could not be liable for any acts done in good faith in execution of the bodies powers – Independent Electoral and Boundaries Commission Act, Act No. 9 of 2011 section 15
Civil Practice and Procedure – parties to a suit – parties to a presidential election petition – Office of the Attorney General – whether the Office of the Attorney General was wrongfully named as a respondent in the Presidential Election Petition - whether the inclusion of IEBC Commissioners as respondents in the Presidential Election Petition violated the principle that Commissioners of an independent constitutional body could not be liable for any acts done in good faith in execution of the bodies powers – Independent Electoral and Boundaries Commission Act, Act No. 9 of 2011 section 15

Brief facts:
The 9th applicant (William Samoei Ruto) sought to strike out the names of the 3rd to 8th respondents from the Presidential Election Petitions. The applicant contended that the said respondents, being members of the 1st respondent (being Commissioners of the IEBC), an independent constitutional and corporate entity, The application also sought to strike out the 13th respondent, the Office of the Attorney General, from the Presidential Election Petition on grounds that the said respondent had no role in the instant petition, unless the instant court granted leave for him to be joined as a Friend of the Court

Issues:

  1. Whether the inclusion of IEBC Commissioners as respondents in a presidential election petition violated section 15 of the IEBC Act which insulated the Commissioners from being personally liable for any acts done in good faith in execution of their mandate.
  2. Whether the Office of the Attorney General’s role in a presidential election petition was limited to being a friend of the court.Read More..

Held:

  1. The statement by the 5th to 8th respondents (4 IEBC Commissioners who refused to own the presidential election results due to the “opaque nature” of the process) brought them squarely within the ambit of grievance by the petitioners. The latter could not be faulted for seeking to place before the court any evidence emanating from the four. To use section 15 of the Independent Electoral and Boundaries Act as a shield would be tantamount to suppressing evidence by the applicant.
  2. The Attorney General of the Republic of Kenya had more capacity than any other litigant in Kenya to fend off any attempts to join him in proceedings to which he ought not to be a party. As the Attorney General, he did not need the aid of the 9th respondent to accomplish such a routine task.

Applications dismissed. 
Orders
No order as to costs.
CIVIL PRACTICE AND PROCEDURE

Amicus curiae admitted in the Presidential Election Petition 2022.

Odinga & another v Independent Electoral and Boundaries Commission & 7 others; Walubengo & 2 others (Amicus Curiae) (Presidential Election Petition E005 of 2022) [2022] KESC 44 (KLR) (29 August 2022) (Ruling)
Neutral citation: [2022] KESC 44 (KLR)
Supreme Court of Kenya
MK Koome, CJ and P; PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala, NS Ndungu, I Lenoala, W Ouko; SCJJ
Reported by John Ribia

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Significance: Applicants have to meet the standard set in Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others [2015] eKLR and Francis Muruatetu & Another v. Republic and 5 Others [2016] eKLR to be admitted as amici curiae in a presidential election petition.

Civil Practice and Procedure – parties to a suit – joinder application – application to be enjoined as amicus curiae - circumstances when a party can be admitted as amicus – what principles should a court consider in an application to be enjoined as an amicus curiae – The Supreme Court (Presidential Election Petition) Rules 2017, rule 17A(1) and (2); The Supreme Court Rules,  2020 rule 19(1)

Brief facts:
John Walubengo, Dr. Joseph Sevilla and Martin Mirero, sought leave to be joined as amici curiae in the Presidential Election Petition No. E005 of 2022. 

Issue:

Whether the applicants met the standard set in Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others [2015] eKLR and Francis Muruatetu & Another v. Republic and 5 Others [2016] eKLR to be admitted as amici curiae. Read More...

Held :

  1. The contents of the said amici brief satisfied the test established by the instant court in Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others [2015] eKLR and Francis Muruatetu & Another v. Republic and 5 Others [2016] eKLR for admission of amici curiae; and the requirements of rule 17 A (1) and (2) of the Supreme Court (Presidential Election Petition) Rules, 2017 and rule 19 of the Supreme Court Rules, 2020.
  2. The applicants were admitted as amici curiae. The amici would not make oral submissions and were to rely solely on their written brief.

Application allowed.
CIVIL PRACTICE AND PROCEDURE

A natural person may not be admitted as an interested party in the Presidential Election Petition.

Raila Odinga & another v Independent Electoral and Boundaries Commission & 9 others (Presidential Election Petition E005 of 2022) [2022] KESC 45 (KLR) (29 August 2022) (Ruling)
Neutral citation: [2022] KESC 45 (KLR)
Supreme Court of Kenya
MK Koome, CJ and P; PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala, NS Ndungu, I Lenoala, W Ouko; SCJJ
August 29, 2022
Reported by John Ribia
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Significance: An application by any person to join the presidential election petition as an interested party shall not be allowed

Civil Practice and Procedure – parties to a suit – joinder application – application to be enjoined as an interested party – category of persons that may be enjoined as an interested party - whether a natural person could be admitted as an interested party in a presidential election petition -  The Supreme Court (Presidential Election Petition) Rules 2017, rule 17A(4) 

Brief facts:
The applicant sought to be enjoined as an interested party in the presidential election petition on grounds that that he had an inherent interest in the outcome of the petition as it raised fundamental issues which were integral to the protection of his rights as enshrined under articles 10, 38, 73,81, 86 and 140 of the Constitution; and that he had substantial issues to raise about the legitimacy of Forms 34A and Forms 34B which were central to petition. No party filed a response to the petition.

Issue:

Whether a natural person could be admitted as an interested party in a presidential election petition. Read More...

Relevant provisions of the Law
The Supreme Court (Presidential Election Petition) Rules 2017, 
Rule 17A (4)
17A.   Third party applications
(1) A person seeking to be admitted as a friend of the Court may apply for admission at the close of pleadings.
(2) An application made under sub-rule (1) shall include a friend of the court brief setting out the person's expertise and reasons for requesting the admission.
(3) The Court may deliver a ruling by way of electronic communication to the applicant.
(4)  An application by any person to join the petition as an interested party shall not be allowed.

 

Held :

  1. Rule 17A (4) of the Supreme Court (Presidential Election Petition) Rules, 2017 provided that an application by any person as an interested party could not be allowed in a presidential election petition.

Application dismissed. 
Orders
No order as to costs.