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Electoral Law – presidential election petition – constitutional threshold to be attained in order to win a presidential election – 50%+1 – what was the applicable formula 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 – 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 Forms 34A issued to agents at the polling stations. Electoral Law – Independent Electoral and Boundaries Commission (IEBC) – powers of IEBC – powers of the chairperson of 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 mixup 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 select constituencies and electoral wards 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, No. 37 of 2016, section 5(n). Statutes – constitutionality of statutes – regulation 87(3) of the Elections (General) Regulations – power to verify and tally 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 - Elections Act , No. 24 of 2011, section 55B; Elections (General) Regulations, regulation 87(3). Law of Evidence – burden of proof – burden of proof in election petitions - who 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 identication 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 kenyalaw.org/caselaw/cases/view/240578/ 3

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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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