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(a) Whereas it is true that the KIEMS kit failed in 235 polling stations, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly lled. This happened successfully in Kibwezi West Constituency and parts of Kakamega County. (b) While the Audit Report was released to the public seven days before the 9th August election, the Register of Voters was used at the election without any apparent anomalies. (c) Smartmatic was procured to provide the necessary technological infrastructure as IEBC did not have the capacity to do so. No credible evidence meeting the requisite standard of proof of access to the system by unauthorized persons was adduced by the petitioners. (d) The Scrutiny Report prepared by the Registrar of this court did not reveal any security breaches of the IEBC’s RTS. (e) IEBC successfully deployed a Biometric Voter Register (BVR) system which captures unique features of a voter’s facial image, ngerprints and civil data, to register and update voter details across the country and in the diaspora. These features are unique to each voter. (f) In compliance with section 6A of the Elections Act, 2011, IEBC opened the Register of Voters for verication of biometric data by members of the public for a period of 30 days. Thereafter, the Register was revised to address issues arising from the verication exercise. KPMG then audited the Register and we are satised that the inconsistencies and inaccuracies identied during the Audit were successfully addressed. (ii) Whether there was interference with the uploading and transmission of Forms 34A from the polling station to the IEBC Public Portal [18] The 1st petitioner alleged staging, that a person who had access to the RTS, intercepted, detained or stored Forms 34A temporarily to convert or manipulate them before uploading them on IEBC’s public portal. It is alleged also on August 11, 2022 IEBC dumped over 11,000 Forms 34A on the public portal between 1101-1109 hrs. [19] To rebut this allegation, IEBC and its Chairperson in their response dated August 26, 2022 denied staging and unauthorized intrusion of the RTS. In that regard, they urge that every image of Form 34A was uploaded immediately after the transmitted result form was received as evinced by the time stamp. Similarly, the 1st respondent denied this allegation. [20] It is our nding that# (a) No credible evidence was presented to prove that anyone accessed the RTS to intercept, detain or store Forms 34A temporarily before they were uploaded onto the Public Portal. The allegation that 11,000 Forms 34A were aected by staging was similarly not proved. (b) The allegation that IEBC, its ocials and strangers used a tool to tamper with the Forms 34A before converting them to the Portable Document Format (PDF) format that eventually appeared on the Public Portal was suciently explained when IEBC demonstrated how KIEMS captured and transmitted the image of Form 34A. Accordingly we dismiss the allegation. (c) During the ICT scrutiny it turned out that the transmission logs produced in the adavit of Justus Nyang’ aya were of no probative value. kenyalaw.org/caselaw/cases/view/240578/ 16

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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

Primary Documents

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