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2017. And whereas a scrutiny of rejected and spoilt votes as was sought in prayer (c) was not specifically done, we have elsewhere above substantively addressed the legal regime on that issue and we do not need to repeat ourselves. However for clarity, and in addressing prayer (d), as we have already stated, it is our firm finding that the decision in the 2013 Raila Odinga case on rejected and spoilt votes remains good law and we see no reason to depart from it. Prayer (d) is therefore disallowed. [383] Prayer (g) has been addressed in the analysis and determination of Issues Nos.(ii) and (iii) and it is our finding therefore that non-compliance with the constitutional and legal principles in inter alia Articles 10, 38, 81 and 86 of the Constitution and the Elections Act coupled with the irregularities and illegalities cited above, affected the process leading to the declaration of the 3rd respondent as President elect in a very substantial and significant manner that whatever the eventual results in terms of votes, the said declaration was null and void and the election was rendered invalid. Prayer (g) is therefore allowed. [384] Regarding prayer (h), the evidence before us cannot lead to a certain and firm decision regarding the specific number of votes affected by the irregularities and illegalities and it is our position that a concise reading of Section 83 of the Elections Act would show that the results of the election need not be an issue where the principles of the Constitution and electoral law have been violated in the manner that we have shown above. Prayer (h) to the extent that it refers to votes to be struck off cannot therefore be allowed. [385] Regarding prayer (i), we have shown beyond peradventure that the presidential election held on 8th August 2017 was not conducted in Presidential Petition No. 1 of 2017 168 | P a g e

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Odinga v. IEBC

Judgment

Question Presented: Which party has the burden of proof to contest an election?

Alleged Acts: Opposition leader Odinga brought this suit against the IEBC and declared President Kenyatta for illegalities and irregularities during the 2017 election process that rendered the election unverifiable and void.

Summary: The decision to nullify the election hinged on the Court’s interpretation of the wording of §83 of the Elections Act, and whether the petitioner had to prove that irregularities and illegalities were of sufficient magnitude to have impacted the results of the election. The Court emphasized the IEBC’s responsibility to comply with all constitutional, legal, regulatory and procedural provisions in place for the administration of elections. The burden of proof on the IEBC to prove that the election was conducted in accordance with the laws and rules in place was not met. The court ruled the IEBC failed to conduct the elections in line with the Constitution and applicable laws and thus annulled the elections.

Conclusion: The 2017 Kenyan elections were invalid, null, and void. The IEBC was ordered to conduct new elections within 60 days.

Legal Issue(s)

Disputing Results
Electoral Integrity

Region: Africa

Country: Kenya

Language of Decision

English

Court: Supreme Court

Election Type: Presidential

Date of decision: Sep 1, 2017

Geolocation

Latitude: -1.2997373106124983

Longitude: 36.80159856269896

: Geolocation

Primary Documents

Kenya- Odinga v. IEBC.pdf
English
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Election Judgments - IFES

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Odinga v. IEBC

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