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WILLIAM RUTO ........................................................................... 1ST RESPONDENT RIGATHI GACHAGUA ................................................................ 2ND RESPONDENT INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION .... 3RD RESPONDENT WAFULA CHEBUKATI ................................................................ 4TH RESPONDENT JULIANA CHERERA ................................................................... 5TH RESPONDENT IRENE MASSIT ............................................................................. 6TH RESPONDENT JUSTUS NYANG'AYA ................................................................... 7TH RESPONDENT FRANCIS WANDERI ................................................................... 8TH RESPONDENT ABDI YAKUB GULIYE ................................................................. 9TH RESPONDENT BOYA MOLU ................................................................................ 10TH RESPONDENT ATTORNEY GENERAL ............................................................. 11TH RESPONDENT AND LAW SOCIETY OF KENYA ........................................................... AMICUS CURIAE ICJ KENYA ...................................................................................... AMICUS CURIAE JOHN WALUBENGO ..................................................................... AMICUS CURIAE JOSEPH SEVILLA ........................................................................... AMICUS CURIAE MARTIN MIRERO ......................................................................... AMICUS CURIAE Supreme Court upholds the election of HE Dr. William Samoei Ruto as the Fifth President of the Republic of Kenya. The petitioners challenged the declared outcome of the Kenyan presidential elections of 2022. The court found that electoral irregularities and illegalities alleged by the petitioners were not proved to the required standard or at all. The mandate of tallying and veriﬁcation of votes was vested in the IEBC as a collective, and the chairperson could not exclude any member or members of the IEBC. However, the declaration of results vested exclusively in the chairperson. The court's decision included the determination that the declared President-elect attained 50%+1 of all the valid votes cast in accordance with article 138(4) of the Constitution. In calculating whether a presidential candidate has attained 50% +1 of votes cast in accordance with article 138(4) of the Constitution only valid votes cast could be considered. Rejected ballot papers, or votes were void and incapable of conferring upon any candidate a numerical advantage. 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. Reported by John Ribia Constitutional Law – Independent Commissions - Independent Electoral and Boundaries Commission (IEBC) – powers of the IEBC – powers of the IEBC vis-à-vis the powers of the chairperson of the IEBC – role of verifying and tallying of votes as received from polling stations countrywide - whether the role of verifying and tallying of votes as received from polling stations countrywide was vested in the IEBC as a corporate entity - whether the role of verifying and tallying of votes as received from polling stations countrywide could be undertaken by the chairperson of the IEBC to the exclusion of other IEBC Commissioners – Constitution of Kenya, articles 138(3)(c) and (10); Elections (General) Regulations, regulation 87(3) kenyalaw.org/caselaw/cases/view/240578/ 2

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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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