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(2) Where an election is postponed under subsection (1), the election shall be held at the earliest practicable time. (3) Notwithstanding the provisions of this section, the Commission may, if satisﬁed that the result of the elections will not be aﬀected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made. Elections (General) Regulations Regulation 87(3) 87. Returns of persons elected. (3) Upon receipt of Form 34A from the constituency returning oﬃcers under sub regulation (1), the Chairperson of the Commission shall— (a) verify the results against Forms 34A and 34B received from the constituency returning oﬃcer at the national tallying centre; (b) tally and complete Form 34C; (c) announce the results for each of the presidential candidates for each County; (d) sign and date the forms and make available a copy to any candidate or the national chief agent present; (e) publicly declare the results of the election of the president in accordance with Articles 138(4) and 138(10) of the Constitution; (f) issue a certiﬁcate to the person elected president in Form 34D set out in the Schedule; and (g) deliver a written notiﬁcation of the results to the Chief Justice and the incumbent President within seven days of the declaration; Provided that the Chairperson of the Commission may declare a candidate elected as the President before all the Constituencies have delivered their results if in the opinion of the Commission the results that have not been received will not make a diﬀerence with regards to the winner on the basis of Article 138(4)(a) and (b) of the Constitution; and Kenya Subsidiary Legislation, 201 7 379 (h) in the case of the other elections, whether or not forming part of a multiple elect ion, publish a notice in the Gazette, which may form part of a composite notice, showing the name or names of the person or persons elected. Held 1. Kenya was a sovereign multi-party democratic state whose foundations were rmly spelt in the Constitution. The Kenyan people’s quest for electoral reforms since independence was well documented. That notwithstanding and even without going back to the pre-1992 era, every cycle of elections had been highly contested with the exception of 2002. That spoke to a background of distrust of the administration of our electoral process. As such, Kenyans made a decision to vest the Supreme Court with the jurisdiction to determine questions regarding the validity of a Presidential Election under article 140 of the Constitution. The reactions following the declaration of results of the Presidential Election of August 9, 2022 showed that the Independent Electoral and Boundaries Commission (IEBC) had not yet garnered universal public condence and trust in the internal management of the Commission and elections. 2. Lack of trust in the electoral system had endured in Kenya for a long time. That led to the introduction of electoral technology via section 44 of the Elections Act, 2011. Under the Elections Act, IEBC was enjoined to adopt technology in the electoral process. IEBC developed a technology known as the Kenya Integrated Electoral Management System (KIEMS) making Kenya’s election process hybrid as it employed both technology and manual processes. kenyalaw.org/caselaw/cases/view/240578/ 6

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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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