(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.
Kenya was a sovereign multi-party democratic state whose foundations were rmly spelt in
the Constitution. The Kenyan people’s quest for electoral reforms since independence was well
documented. That notwithstanding and even without going back to the pre-1992 era, every cycle
of elections had been highly contested with the exception of 2002. That spoke to a background of
distrust of the administration of our electoral process. As such, Kenyans made a decision to vest the
Supreme Court with the jurisdiction to determine questions regarding the validity of a Presidential
Election under article 140 of the Constitution. The reactions following the declaration of results of
the Presidential Election of August 9, 2022 showed that the Independent Electoral and Boundaries
Commission (IEBC) had not yet garnered universal public condence and trust in the internal
management of the Commission and elections.
2.
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.
kenyalaw.org/caselaw/cases/view/240578/
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