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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 led 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 led 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. 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 modication 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 claimed 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. IEBC through its chairperson denied staging an unauthorized intrusion of the RTS. 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. Those assertions were denied by IEBC and its chairperson. However, they 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 o of votes cast. Lastly the petitioners challenged the results of the presidential election on account of the opaque nature of the verication exercise at the National Tallying Center. On August 15, 2022, 4 commissioners of the IEBC held a press conference and termed the results “opaque” due to the manner in which the chairperson had been conducting the verication and tallying exercise, calling 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 nullied. It was the petitioners’ argument, therefore, that a dysfunctional Commission could not deliver a credible election. Issues i. Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, veriability, security and transparency to guarantee accurate and veriable results. ii. Whether there was interference with the uploading and transmission of Forms 34A from the polling stations to the IEBC Public Portal. kenyalaw.org/caselaw/cases/view/240578/ 4

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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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