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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. 32. 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 aect the nal result of the presidential election. 33. In exercising its jurisdiction pursuant to Article 140 of the Constitution, the Supreme Court sat as an election court, with the mandate to determine the validity or otherwise of the election of the President-elect. The jurisdiction of the Court was quite circumscribed in terms of the orders or reliefs it could grant following the hearing and determination of an Election Petition under Article 140. 34. The Supreme Court could only make the following orders when determining the validity of a presidential election petition under article 140 of the Constitution: a. 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. b. Should the court determine that the election of the President-elect was valid, it was to issue a declaration to that eect. The court would then as a matter of course, make an order dismissing the petition, with or without costs as the case may be. 35. The court could not assume jurisdiction that was 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. 36. 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 led by those it admitted in such capacity. Petitions dismissed. Orders i. 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. ii. The election of the 1st respondent as President-elect to be valid under article 140(3) of the Constitution. iii. Each party would bear their costs. Citations Cases Kenya 1. Independent Electoral and Boundaries Commission v Maina Kiai & 5 others Civil Appeal 105 of 2017; [2017] eKLR - (Explained) 2. Mwau, John Harun & 2 others v Independent Electoral and Boundaries Commission & 2 others Petitions 2 & 4 of 2017; [2017] eKLR (Consolidated) - (Followed) 3. Odinga & 5 others v Independent Electoral and Boundaries Commission & 4 others [2013] 1 KLR 63 - (Explained) 4. Odinga, Raila Amolo & another v Independent Electoral and Boundaries Commission & 2 others Presidential Petition 1 of 2017; [2017] eKLR - (Explained) Statutes Kenya kenyalaw.org/caselaw/cases/view/240578/ 11

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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
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Election Judgments - IFES

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Odinga, et. al v. Ruto

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