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(d) The Registrar’s Report shows 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 certied copies presented to this court under Section 12 of the Supreme Court Act, 2011. (e) Regarding the allegation that the integrity of the Public Portal was compromised, this 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 verication to transmission of results. (f) The RTS was congured on a Virtual Platform Network (VPN) and the SIM cards locked to a specic polling station. The server was also congured to accept results only from authorized and properly mapped KIEMS kit. In our view, the petitioners failed to produce credible evidence to the contrary. (g) 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. In our considered view, there was no evidence of a man in the middle server congured to the IEBC’s VPN network; and no evidence was produced to show that the Chairperson of IEBC and sta were part of the alleged conspiracy to stage the transmission process. (iii) Whether there was a dierence between Forms 34A uploaded on the IEBC Public Portal, the Forms 34A received at the National Tallying Centre, and Forms 34A issued to the Agents at the Polling Stations [21] On this issue, the 1st petitioners’ case was that there was deliberate manipulation and tampering with Forms 34A as demonstrated in their adavits to the eect that votes were being deducted from the 1st petitioner and added to the 1st respondent. [22] To support this, the petition is supported by the evidence contained in the adavits of Martha Wangari Karua sworn on August 21, 2022, Celestine Anyango Opiyo sworn on August 21, 2022 and August 28, 2022, Arnold Ochieng Oginga sworn on August 19, 2022 and August 28, 2022, John Mark Githongo sworn on August 21, 2022 and August 28, 2022, Dr Nyangasi Oduwo sworn on August 21, 2022 and Martin E. Papa sworn on August 20, 2022. [23] On the other hand, IEBC and its Chairperson urge that all Forms 34A transmitted to the IEBC portal were not interfered with or manipulated. Further, that the Forms 34A signed at the polling station and issued to the agents were identical to the Forms 34A uploaded on the Public Portal and delivered to the National Tallying Centre (Bomas). It was contended that in any event, IEBC used the original physical Forms 34A to tally, verify and declare the Presidential Election results. [24] The court ordered scrutiny of the Forms 34A from the 41 polling station outlined in the adavit of Celestine Opiyo to ascertain allegations of interference. [25] It is our nding that# (a) There were no signicant dierences captured between the Forms 34A uploaded on the Public Portal and the physical Forms 34A delivered to Bomas that would have aected the overall outcome of the Presidential Election. (b) No credible evidence was presented to support the allegation that Forms 34A presented to agents diered from those uploaded to the Public Portal. The Report by the Registrar of this court conrmed the authenticity of the original forms in the sampled polling stations. kenyalaw.org/caselaw/cases/view/240578/ 17

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Odinga, et. al v. Ruto

Judgment

Question Presented: Whether petitioners’ evidence of interference and election fraud satisfied the appropriate level of evidence as required by the Court and affected the election result, warranting the cancellation and rerun of the election?

Alleged Acts: Kenya’s former prime minister, Raila Odinga, accused President-Elect William Ruto, who beat Odinga in the country’s 2022 national election, of vote tampering, ballot stuffing, and fraudulently interfering with the election.

Procedural history: Seven days after the results of the election were announced, the petitioners filed this suit directly to the Supreme Court of Kenya, which has direct authority to hear cases concerning national electoral matters.

Summary: At the conclusion of the 2022 Kenyan national elections, the Independent Electoral and Boundaries Commission (IEBC) of Kenya declared Respondent William Ruto the winner of the presidency by less than 2 percent of the total vote. However, several days after the election, petitioner Raila Odinga, the country’s former prime minister and Ruto’s opponent, sued the IEBC for being nontransparent and biased towards the respondent and alleged voter fraud and ballot stuffing by the respondent and his supporters. Based on these arguments, petitioner sought to have the election nullified. Odinga and sixteen other petitioners – all supporters of Odinga, including his running mate – challenged the results and argued that the technology used by the IEBC “fell short of the prescribed constitutional and statutory standards” of Kenya. They also alleged that certain ballot station workers intercepted, detained, or stored ballot forms to tamper with the election process. The IEBC denied the assertions but admitted there was “confusion with the printed ballot papers” and that they had discovered a “mix-up on the eve of the election[.]” Based on this, the petitioners argued that there may have been sufficient levels of vote tampering and voting irregularities to cast the election into doubt.

Conclusion: The court categorically denied every petition filed by the petitioners, holding that they did not satisfy the appropriate level of evidence for their numerous claims and that allegations of irregularity – real or otherwise – must be significant enough to have affected the final result of the election. While the Court affirmed its commitment to hearing all allegations of fraud and election malfeasance, it found no widespread evidence of interference in this case. Specifically, the Court determined that the petitioners presented no credible evidence that the IEBC or a third party fraudulently altered ballots or illegally accessed or altered electronic voting system data, writing, “[n]ot a single document had been presented by the 1st petitioner to prove systematic ballot stuffing.” The Court also held that the petitioners submitted video logs that were either from a previous election in 2017 or were “outright forgeries.” Further, the Court affirmed that even if there had been small, isolated incidents of interference, the evidence did not show that such interference altered the outcome of the election. The Court held that such issues should be dealt with on a case-by-case basis, but the level of fraud present in this election did not mandate a nullification of the results.

Legal Issue(s)

Civil Procedure
Disputing Results
Electoral Administration Irregularities
Electoral Integrity
Electronic Voting
EMB Operation

Applicable Law(s): Constitution of Kenya, 2010, articles 101, 136(2)(a), 177(1) and 180(1); Elections Act, section 55B Election Offences Act, No. 37 of 2016

Region: Africa

Country: Kenya

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: Sep 5, 2022

Geolocation

Latitude: -1.3383790223516616

Longitude: 36.83349564671517

: Geolocation

Primary Documents

Odinga, et al. v. Ruto CASE.pdf
English
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Election Judgments - IFES

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Odinga, et. al v. Ruto

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