The High Court dismissed a petition by Busia Senator Okiya Omtatah seeking to have the national tallying and verification of presidential election results declared unconstitutional.
On the question of discrepancies between electronically transmitted results and physical results delivered from polling stations, the court ruled that the result verified and declared at the respective polling station would prevail.
The court upheld Section 39(1C) of the Elections Act and Regulation 83(2) of the Elections (General) Regulations, which provide for the aggregation and verification of presidential results at the national level.
Omtatah had argued that the Constitution places the primary and final responsibility for tallying, verifying and declaring presidential results at the constituency level.
He also sought orders barring the Independent Electoral and Boundaries Commission (IEBC) from re-tallying or re-verifying presidential results once they had been announced by constituency returning officers.
The court found that national aggregation was necessary because presidential candidates must meet a constitutionally prescribed nationwide threshold. Article 138(4) of the Constitution requires a presidential candidate to secure more than 50 per cent of all votes cast nationally, as well as at least 25 per cent of the votes cast in more than half of the counties.
The judges noted that this dual threshold could not be verified at constituency or county level.
“A national aggregation and confirmation exercise is accordingly not an arbitrary extra burden imposed on presidential candidates or voters,” the court held, describing the national tallying process as a “necessary and rational corollary” of the Constitution’s unique eligibility threshold for the presidency.
The court also dismissed claims that the national tallying process amounted to unjustified differential treatment contrary to Article 27 of the Constitution.
Judges further declined to quash Sections 39(1C) and 39(1G) of the Elections Act and Regulation 83 in their entirety, finding that Omtatah had adequately made his case on the central question of the constitutionality of provisions relating to the finality of constituency results.
However, the court said other claims, touching on Article 35, ballot reconciliation, government timelines and certain Article 27 arguments, fell short of the required threshold.
“These claims proceed largely by way of general assertion and invocation of constitutional provisions without the requisite nexus to a demonstrated or imminent violation,” the court said.
In its ruling, the court also urged Parliament to consider reforms to electoral laws ahead of the 2027 General Election. It invoked philosopher John Rawls’ concept of the “veil of ignorance,” saying lawmakers should design neutral electoral rules without knowing in advance who would benefit from them, an approach the court said would help ensure election laws serve the wider interests of Kenyans rather than the “narrow, temporal and variable goals” of the political class.
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