Presidential Election Petition No. E005 of 2022

REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Koome; CJ & P, Mwilu; DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko,
SCJJ)
PRESIDENTIAL ELECTION PETITION NO. E005 OF 2022
(Consolidated with)
PRESIDENTIAL ELECTION PETITION NOS. E001, E002, E003, E004,

E007 & E008 OF 2022)
−BETWEEN−
RAILA ODINGA ……………………………………………

1ST PETITIONERS
MARTHA KARUA ……………………………..……..…..
JOHN NJOROGE KAMAU ………….………..…..…… 2ND PETITIONER
YOUTH ADVOCACY AFRICA ………….…….…..……

PETER KIRIKA ………………………….……….……..... 3RD PETITIONERS
KHELEF KHALIFA ……………………….……..….…..

GEORGE OSEWE ……………………….………..………
RUTH MUMBI …………………….………………..….... 4TH PETITIONERS
GRACE KAMAU ………………….…………..…..……...
DAVID KARIUKI NGARI ……………………..…….… 5TH PETITIONER
OKIYA OMTATAH OKOITI …………….……….….....

NYAKINA WYCLIFE GISEBE ……………..……….…
6TH PETITIONERS
VICTOR OKUNA ………………..……….………..…..….
JOHN MAINA ……………………….………………..……
JULIAH NYOKABI CHEGE ……………….…….…….

JOSEPH MUTUA NDONGA ………………..…..…….. 7TH PETITONERS
SIMON MWAURA NJENGA ………………..…………
−AND−
WILLIAM RUTO ………………………………….…………. 1ST RESPONDENT

RIGATHI GACHAGUA ………………………….….….….. 2ND RESPONDENT
P.E.P No. E005 of 2022 (Consolidated with) P.E.P No. E001-E004 and E007-E008 OF 2022age 1 of 36
INDEPENDENT ELECTORAL
BOUNDARIES COMMISSION ………….……...………… 3RD RESPONDENT
WAFULA CHEBUKATI………………….…………………… 4TH RESPONDENT
JULIANA CHERERA ..………………….….…………….….. 5TH RESPONDENT
IRENE MASIIT ………………………….…………..…………. 6TH RESPONDENT
JUSTUS NYANG’AYA …………….……………….……...…. 7TH RESPONDENT
FRANCIS WANDERI …………………….…….……….……. 8TH RESPONDENT
PROF. ABDI YAKUB GULIYE …….…….………….…..… 9TH RESPONDENT
BOYA MOLU ……………………………...…….….………… 10 TH RESPONDENT
ATTORNEY GENERAL ……………….…….……….…….. 11TH RESPONDENT
−AND−
LAW SOCIETY OF KENYA ………………..………..………

ICJ KENYA ……………………………….……………..…..…..
JOHN WALUBENGO………………………..………..…..…. AMICI CURIAE
DR. JOSEPH SEVILLA………………………………..………
MARTIN MIRERO ……………………………………..……...
JUDGMENT OF THE COURT
(Pursuant to Rule 23(1) of the Supreme Court (Presidential Election

Petition) Rules, 2017)
THE PRESIDENTIAL ELECTION OF 9th AUGUST 2022
A. INTRODUCTION
This Judgment is rendered pursuant to Rule 23(1) of the Supreme
Court (Presidential Election Petition) Rules, 2017.
[1] Kenya is a sovereign multi-party democratic state whose foundations are firmly
spelt in the Constitution. The Kenyan people’s quest for electoral reforms since
independence is well documented. That notwithstanding and even without going
back to the pre-1992 era, every cycle of elections has been highly contested with
the exception of 2002. This speaks to a background of distrust of the
administration of our electoral process. Informed by this setting, 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 9th August, 2022 shows that the Independent Electoral and Boundaries
Commission (IEBC) has not yet garnered universal public confidence and trust in
the internal management of the Commission and elections. On 15th August, 2022,
six days after the General Elections were held, Mr. Wafula Chebukati, the
Chairperson of IEBC announced the following results:
CANDIDATES VOTES PERCENTAGE

Raila Odinga 6,942,930 48.85
William Ruto 7,176,141 50.49
David Waihiga 31,987 0.23
George Wajackoyah 61,969 0.44
[2] Based on the aforesaid results, the Chairperson of the IEBC declared William
Samoei Ruto, (the 1st respondent), the Presidential Candidate for the United
Democratic Alliance Party, as the President-elect. This declaration precipitated a
total of nine (9) Presidential Election Petitions filed before this Court to wit;
(i) Presidential Election Petition No. E001 of 2022 - John

Njoroge Kamau vs. Wafula Chebukati and 3 Others
(respondents) and Raila Amolo Odingaa and 7 Others
(interested parties).
(ii) Presidential Election Petition No. E002 of 2022 - Youth
Advocacy Africa & Another vs. IEBC & 12 Others.
(iii) Presidential Election Petition No. E003 of 2022 - Khelef
Khalifa & 3 Others vs. IEBC & 3 Others.
(iv) Presidential Election Petition No. E004 of 2022 - David
Kariuki Ngari vs. IEBC & 9 Others.
(v) Presidential Election Petition No. E005 of 2022 - Raila
Amollo Odinga & Another vs. IEBC & 8 Others.
(vi) Presidential Election Petition No. E006 of 2022 - Moses
Kuria & Others vs. Hon. Raila Amolo Odinga and 4 other
interested parties.
(vii) Presidential Election Petition No. E007 of 2022 - Okiya
Omtatah Okoiti & Others vs. IEBC & Others.
(viii) Presidential Election Petition No. E008 of 2022 - Juliah
Nyokabi Chege & 2 Others vs. IEBC & 3 Others.
(ix) Presidential Election Petition No. E009 of 2022 - Reuben
Kigame Lichete vs. The Independent Electoral &
Boundaries Commission (IEBC), and Others.
[3] Further, a total of twenty-four (24) interlocutory applications and one (1)
preliminary objection were filed and determined by this Court. Two of the
Presidential Election Petitions were struck out, that is, Presidential Election
Petition Nos. E006 and E009 of 2022 for failure to meet the constitutional
threshold as set out under Article 140 (1) of the Constitution.
[4] On 29th August, 2022 this Court also admitted three amici curiae briefs by the
Law Society of Kenya (LSK), the Kenyan Section of the International Commission
of Jurists (ICJ Kenya Chapter) and John Walubengo and 2 Others.
A. CONSOLIDATION OF PETITIONS
[5] Upon perusing and considering the issues raised in the remaining Presidential
Election Petition Nos. E001, E002, E003, E004, E005, E007, and E008, the
responses and the submissions filed thereto; this Court found that all the seven
Petitions substantially raised similar issues and sought similar reliefs.
Consequently, on 30th August 2022, this Court Ordered that the seven Petitions be
consolidated and designated Presidential Election Petition No. E005 of 2022 as
the lead file.
B. ISSUES FOR DETERMINATION
[6] From the consolidated Petition, responses and submissions filed thereto by all
the parties, the Court crystallised the following issues for determination:
1. Whether the technology deployed by the IEBC for the

conduct of the 2022 general elections met the standards of
integrity, verifiability, security, and transparency to
guarantee accurate and verifiable results;
2. Whether there was interference with the uploading and

transmission of Forms 34A from the Polling Stations to the
IEBC Public Portal;
3. Whether there was a difference between Forms 34A

uploaded on the IEBC Public Portal and the Forms 34A
received at the National Tallying Centre, and the Forms
34A issued to agents at the Polling Stations;
4. Whether the postponement of Gubernatorial Elections in

Kakamega and Mombasa counties, Parliamentary
elections in Kitui Rural, Kacheliba, Rongai and Pokot
South Constituencies and electoral wards in Nyaki West in
North Imenti Constituency and Kwa Njenga in Embakasi
South Constituency resulted in voter suppression to the
detriment of the Petitioners in Petition no. E005 of 2022;
5. Whether there were unexplainable discrepancies between

the votes cast for presidential candidates and other elective
positions;
6. Whether the IEBC carried out the verification, tallying,

and declaration of results in accordance with Article
138(3)(c) and 138(10) of the Constitution;
7. Whether the declared President-elect attained 50%+1 of all

the votes cast in accordance with Article 138(4) of the
Constitution;
8. Whether there were irregularities and illegalities of such

magnitude as to affect the final result of the Presidential
Election;
9. What reliefs and orders can the Court grant/issue?
[7] Having considered and deliberated upon the consolidated Petition, the
attendant responses, submissions and the amici curiae briefs we now make the
following determination:
(i) Whether the technology deployed by the IEBC for the
conduct of the 2022 general elections met the standards of
integrity, verifiability, security and transparency to
guarantee accurate and verifiable results
[8] As noted in the introduction, lack of trust in the electoral system has endured
in Kenya for a long time. This led to the introduction of electoral technology
following the recommendations made by the Independent Review Commission on
the General Elections held on the 27th December, 2007 (Kriegler Commission
Report). The Report recommended integration of technology into Kenya’s
electoral processes for registration, identification of voters and transmission of
results. These were enacted in Section 44 of the Elections Act, 2011. By this statute,
IEBC is enjoined to adopt technology in the electoral process. As a consequence,
the IEBC developed a technology known as Kenya Integrated Electoral
Management System (KIEMS) making Kenya’s election process hybrid as it
employed both technology and manual processes.
[9] The 1st, 3rd and 4th petitioners in the consolidated Petition, challenge the
technology used by IEBC during the 2022 General Election. They plead that the
manner in which technology was deployed and utilized fell short of the prescribed
constitutional and statutory standards. As regards the audit of the Register of
Voters, they urge that IEBC, pursuant to its Elections Operations Plan, committed
itself to conducting an audit of the Register of Voters by 31st March 2022. To the
contrary, they allege, it only publicly availed the audit report on its website on 2nd
August 2022, 7 days to the election.
[10] In this report, it was noted that the auditors established serious gaps and risks
to the electoral process including; numerous cases of change of voting stations
without knowledge or approval of the affected voters; grant of voter update
privileges in IEBC IDMS to 14 user accounts unrelated to voter registration;
reducing the accountability of user activities in the Register of Voters; presence of
11 active generic accounts on the ABIS application and two ABIS users with the
same log in identification; risking unauthorized system users possible
transference; change of particulars or deactivation of voters in the system; IEBC’s
failure to set up access recertification and user activity review process; and IEBC’s
failure to respond to request by auditors for crucial information.
[11] On the integrity of the technology deployed, the 7th petitioner contends that
in order to comply with Article 86 of the Constitution and Section 44 of the
Elections Act, the technology deployed must be simple, accurate, verifiable, secure,
accountable and transparent. On the simplicity of technology, the 7th petitioner
contends that the KIEMS kit failed the test as they were not easily usable by
ordinary citizens without expert knowledge. They further assert that IEBC was
expected to procure and put in place a technology necessary for the conduct of the
General Election at least one hundred and twenty (120) days before the election
and ensure consultation with the relevant agencies, institutions and stakeholders.
[12] Furthermore, the petitioners allege that IEBC violated its constitutional duty
by delegating the design, implementation and conduct of the KIEMS component
of the election to a foreign company-Smartmatic International Holding BV
(Smartmatic). As a result, IEBC’s staff and the public did not have full
comprehension of the KIEMS component. They conclude therefore that IEBC
abdicated and surrendered its role to conduct elections to Smartmatic; and that
IEBC vigorously fought any attempt to subject Smartmatic’s activities to
accountability and transparency including the safeguards required by Regulations
61(4)(a), 69(1)(d), (e)(iii) and 75(6) of the Elections (General) Regulations, 2012.
[13] In response, IEBC has submitted that the electoral system met the
constitutional threshold; that all necessary information was accessed only by
authorized persons; the information was accurate, complete and protected from
malicious modification either by authorized or unauthorized persons; it
maintained an audit trail on activities related to information; and the information
was available and could be authenticated through the use of various security
features.
[14] In further response, IEBC contended that they engaged KPMG on 7 th April
2022 to conduct an Audit of the Register of Voters, which was submitted on 18th
June 2022. In addition, it issued a briefing on the Report on 20th June 2022,
summarizing the thematic areas therein and disclosing its findings as well as
actions taken to remedy the issues identified. It also conducted its annual audit in
compliance with Regulations 11 and 12 of the Election (Technology) Regulations,
2017 and a Certification of Compliance issued to it on 3rd August 2022.
[15] IEBC relied on affidavits sworn by Michael Ouma, Moses Sunkuli and Marjan
Hussein Marjan on 26th August 2022 to the effect that it published the interim
report by KPMG on 8th June 2022 and embarked on remedial measures aimed at
effecting the recommendations ahead of publication of the final report. It was
asserted that it could not publish the full final Audit Report as doing so would
compromise the integrity and security of the electoral technology system,
considering the provisions of the Data Protection Act, which imposes a duty to
protect the data of Kenyan voters.
[16] On the other hand, the 1st and 2nd respondents urge that even if there was
failure of technology, it did not vitiate the result of the Presidential Election.
[17] Upon considering all the pleadings, submissions and the ICT scrutiny and
Inspection, tallying and recount Report which fully examined the IEBC’s Result
Transmission System (RTS), we are not persuaded by the allegation that the
technology deployed by IEBC failed the standard of Article 86(a) of the
Constitution on integrity, verifiability, security and transparency for the following
reasons:
(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 filled. 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, fingerprints 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 verification 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 verification exercise. KPMG then audited
the Register and we are satisfied that the inconsistencies
and inaccuracies identified 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 11th
August, 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 26th
August, 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 finding 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 affected
by staging was similarly not proved.
(b) The allegation that IEBC, its officials 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 sufficiently
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 affidavit of Justus Nyang’ aya were of
no probative value.
(d) The Registrar’s Report shows that the original Forms 34A
from the contested polling stations which were allegedly
intercepted were exactly the same as those on the Public
Portal and the certified copies presented to this Court under
Section 12 of the Supreme Court Act, 2011.
(e) Regarding the allegation that the integrity of the Public

Portal was compromised, this was disproved by evidence of
consistent attributes such as unique time stamps, uniform
PDF conversions at the polling stations, correct polling
station mapping and consistent KIEMS reporting from
verification to transmission of results.
(f) The RTS was configured on a Virtual Platform Network

(VPN) and the SIM cards locked to a specific polling station.
The server was also configured to accept results only from
authorized and properly mapped KIEMS kit. In our view,
the petitioners failed to produce credible evidence to the
contrary.
(g) A review of some of the logs presented as evidence of staging

showed that they were either from logs arising from the
2017 Presidential Election or were outright forgeries. In our
considered view, there was no evidence of a man in the
middle server configured to the IEBC’s VPN network; and no
evidence was produced to show that the Chairperson of
IEBC and staff were part of the alleged conspiracy to stage
the transmission process.
(iii) Whether there was a difference between Forms 34A uploaded

on the IEBC Public Portal, the Forms 34A received at the
National Tallying Centre, and Forms 34A issued to the Agents
at the Polling Stations
[21] On this issue, the 1st petitioners’ case was that there was deliberate
manipulation and tampering with Forms 34A as demonstrated in their affidavits
to the effect that votes were being deducted from the 1st petitioner and added to the
1st respondent.
[22] To support this, the Petition is supported by the evidence contained in the
affidavits of Martha Wangari Karua sworn on 21st August 2022, Celestine Anyango
Opiyo sworn on 21st August 2022 and 28th August 2022, Arnold Ochieng Oginga
sworn on 19th August 2022 and 28th August 2022, John Mark Githongo sworn on
21st August 2022 and 28th August 2022, Dr. Nyangasi Oduwo sworn on 21st
August 2022 and Martin E. Papa sworn on 20th August 2022.
[23] On the other hand, IEBC and its Chairperson urge that all Forms 34A
transmitted to the IEBC portal were not interfered with or manipulated. Further,
that the Forms 34A signed at the polling station and issued to the agents were
identical to the Forms 34A uploaded on the Public Portal and delivered to the
National Tallying Centre (Bomas). It was contended that in any event, IEBC used
the original physical Forms 34A to tally, verify and declare the Presidential
Election results.
[24] The Court ordered scrutiny of the Forms 34A from the 41 polling station
outlined in the affidavit of Celestine Opiyo to ascertain allegations of interference.
[25] It is our finding that─
(a) There were no significant differences captured between the

Forms 34A uploaded on the Public Portal and the physical
Forms 34A delivered to Bomas that would have affected the
overall outcome of the Presidential Election.
(b) No credible evidence was presented to support the

allegation that Forms 34A presented to agents differed
from those uploaded to the Public Portal. The Report by the
Registrar of this Court confirmed the authenticity of the
original forms in the sampled polling stations.
(c) The affidavits of Celestine Anyango Opiyo and Arnold

Ochieng Oginga, while containing sensational
information, were not credible as the Registrar’s Report
confirmed that all the Forms 34A attached to those
affidavits and purportedly given to them by agents at select
polling stations were significantly different from the
originals, certified copies and those on the Public Portal.
The purported evidence of Celestine Opiyo and Arnold
Oginga sworn in their respective affidavits was not only
inadmissible, but are also unacceptable. It has been
established that none of the agents on whose behalf the
forms were being presented swore any affidavit; that there
is nothing to show that they had instructed both Celestine
Opiyo and Arnold Oginga to act for them. Yet the two have
gone ahead to depone on matters that are not within their
knowledge.
(d) This Court cannot countenance this type of conduct on the

part of counsel who are officers of the Court. Though it is
elementary learning, it bears repeating that affidavits filed
in Court must deal only with facts which a deponent can
prove of his own knowledge and as a general rule, counsel
are not permitted to swear affidavits on behalf of their
clients in contentious matters, like the one before us,
because they run the risk of unknowingly swearing to
falsehoods and may also be liable to cross-examination to
prove the matters deponed. We must remind counsel who
appear before this Court, or indeed before any other court,
or tribunal of the provisions of Sections 113 and 114 of Penal
Code, that swearing to falsehoods is a criminal offence, and
too that it is an offence to present misleading or fabricated
evidence in any judicial proceedings.
(e) Section 114 of the Penal Code states that:
“Any person who swears falsely or makes a false
affirmation or declaration before any person authorised to
administer an oath or a declaration upon a matter of public
concern, and at such circumstances that the false swearing
or declaration if committed in a judicial proceeding would
have amounted to perjury, is guilty of a misdemeanour.”
One of the most serious losses an advocate may ever suffer

is the loss of trust of Judges for a long time. Such conduct
amounts to interference with the proper administration of
justice.
(f) The contents of the affidavit of John Mark Githongo, which

may contain forgeries, are dismissed for not meeting the
evidential threshold.They contained no more than
incredible and hearsay evidence. No admissible evidence
was presented to prove the allegation that Forms 34A were
fraudulently altered by a group situated in Karen under
the direction of persons named in the affidavit and video
clip attached to it. In fact, his two affidavits amount to
double hearsay, and incapable of being proved at each
layer.
(g) We turn to Form 34A for Gacharaigu Primary School

which was sensationally presented by Julie Soweto,
Advocate, to show that one, Jose Carmago, accessed the
RTS and interfered with the result contained therein
turned out to be no more than hot air and we were taken on
wild goose chase that yielded nothing of probative value.
(h) The KIEMS kit relating to Psongoywo Primary School
which bore the same serial number with another was
admitted by IEBC as an inadvertent manufacturer’s error.
We are also satisfied that the two kits had other identifying
features that were markedly different including the time
stamps and polling code. Nothing turns on that anomaly.
[26] Therefore to the question whether there was a difference between Forms 34A
uploaded on the IEBC Public Portal, those received at the National Tallying
Centre, and those issued to the candidates’ agents at the Polling Stations, we have
found none.
(iv) Whether the postponement of Gubernatorial Elections in

Kakamega and Mombasa Counties, Parliamentary elections in
Kitui Rural, Kacheliba Rongai and Pokot South Constituencies
and electoral wards in Nyaki West in North Imenti
Constituency and Kwa Njenga in Embakasi South Constituency
resulted in voter suppression to the detriment of the Petitioners
in Petition No. E005 of 2022
[27] It is common knowledge that IEBC postponed elections for various seats
during the General Elections of 9th August, 2022 due to mix-up of ballot papers in
the above named electoral units.
[28] It is the combined case of the 1st and 2nd petitioners that, in terms of Articles
136(2)(a), 177(1), 180(1) as read with Article 101 of the Constitution, the
Chairperson of IEBC had no jurisdiction to postpone elections in those areas; that
Section 55B of the Elections Act is inconsistent with the Constitution and therefore
void to the extent that it purports to donate to IEBC power to postpone elections
in the Constituency, County or ward contrary to the Constitution and the
postponement undermined the conduct of free, fair and credible elections by
depriving the voters an opportunity to vote for all the candidates on the date
stipulated by the Constitution. The petitioners further contend that, the
postponement of elections had the overall effect of suppressing voter turnout in
the electoral units in question which was prejudicial to them.
[29] Both the 1st and 3rd petitioners also believe that elections were deliberately
postponed in Kakamega and Mombasa, Counties. It was alleged that these areas
are considered to be 1st petitioner’s strongholds, and as such, the postponement of
elections worked to his disadvantage and handed a benefit to the 1st respondent.
[30] These assertions were denied by IEBC and its Chairperson. They however,
admitted that they experienced confusion with the printed ballot papers and
explained that they only discovered the mix-up on the eve of the Election when the
ballot papers were being distributed to the polling stations; that as a practice, ballot
papers can only be opened on the eve of the Election Day to avoid any mischief;
and that by the time the mix-up was discovered, it was logistically impossible to
print and replace the ballots papers in time for the election.
[31] For this claim to succeed, it must be demonstrated, first, that IEBC had no
authority in law to postpone the elections and secondly, that the postponement
was deliberate and calculated to suppress voter turnout so as to affect the result by
reducing the 1st petitioner’s overall votes.
[32] Section 55B of the Elections Act, 2011 provides for circumstances when
elections can be postponed in a particular electoral unit including in cases of
emergency.
[33] We are therefore satisfied that on the basis of the foregoing provision, that
the 3rd respondent had the requisite power to postpone election in the
Constituencies, Counties and wards in question.
[34] Concerning the allegation of voter suppression, we note that voter
suppression is generally recognized as a political strategy which takes many forms
but whose practical effect is ultimately to reduce voting by deliberately
discouraging or preventing targeted groups of people from exercising their right to
vote and thereby influence the outcome of an election. It therefore goes against the
letter and spirit of Article 38 which guarantees every citizen the right to make
political choices based on universal suffrage.
[35] Regarding this allegation, it has not been shown that, by postponing elections
in the named electoral units, IEBC acted in bad faith or was influenced by
irrelevant factors and considerations. From the explanation tendered, we are
satisfied that the postponement was occasioned by a genuine mistake, which in our
view, could have been avoided had the members and staff of the IEBC been more
diligent when they went to inspect the templates in Athens, Greece where the
printing of ballot papers was undertaken.
[36] In the absence of any empirical data, we cannot find a basis upon which to
conclude, as a matter of fact or evidence that the postponement affected voter
turnout as a consequence of which the 1st petitioner, alone, as a Presidential
candidate suffered a disadvantage. At any rate, the nature of the ballot being an
individual decision and secret, there may be other variables to which the turnout
in the named units can be attributed. From the evidence on record, however, it
appears to us that this year’s General Election recorded one of the lowest turnout
since the reintroduction of multi- party political system, some 30 years ago. If there
was a low voter turnout, it affected all the six categories of candidates and its
explanation, in our view lies elsewhere but certainly not a calculated suppression.
[37] On the other hand, in rebuttal to these claims, the IEBC illustrated, with
examples to our satisfaction that there was no nexus between the postponement of
elections and voter turnout in the affected units. Far from the fact that this claim
was undoubtedly just another red herring, it has nothing to do with the question
under review, and accordingly we reject it and hold that there is no proof that the
postponement resulted in voter suppression to the detriment of the 1st petitioner.
(v) Whether there were unexplainable discrepancies between

the votes cast for Presidential candidates and other elective
positions
[38] The 1st petitioner was categorical that there was systematic ballot stuffing in
certain Counties mainly in the Rift Valley and central parts of Kenya, where,
according to him a total of 33,208 votes were cast for President only without
corresponding votes for the other elective positions.
[39] On their part, IEBC and its Chairperson, while acknowledging that, indeed in
some instances there was vote differential between those cast for President and for
other positions, maintained that they were insignificant; that the instances related
to votes by prisoners and citizens in the diaspora who only voted for President but
not for the other elective positions. The differential also includes rejected ballot
papers and stray votes which do not count as valid votes.
[40] The well-established principle that the person who asserts a fact must
prove it casts the burden upon the 1st petitioner to demonstrate that there
were instances of ballot stuffing of such a magnitude as to justify the
nullification of the Presidential Election.
[41] Ballot stuffing, which is the illegal addition of extra ballots, is a type of
electoral fraud aimed at swinging the results of an election towards a
particular direction. Not a single document has been presented by the 1st
petitioner to prove systematic ballot stuffing. A figure of 33,208 votes relied
on in this claim is based on unproven hypothesis, that since the number of
votes cast for President is higher than those for the other positions then,
without more, it must follow that there was fraud. Fraud is a serious criminal
offence and must be proved beyond reasonable doubt . Under Section 5 (n)
of the Election Offences Act, it is an offence for a person to vote more than
once in any election.
[42] IEBC has proffered a plausible explanation for the vote differential.
There are categories of voters who only vote for the President, such as
prisoners and Kenyans in the diaspora. There were an insignificant number
of stray votes, whose combined effect cannot justify nullification of the
election.
[43] Finally, a General Election in Kenya comprises of six (6) different and
separate elections held concurrently on the same day. Such elections are
held by secret ballot and one cannot predetermine the voter turnout or how
voters will vote in each election. None of the parties has flagged anything so
significant that it would have affected the outcome of the Presidential
Election vis á vis the other five elections held on that day. We find therefore
that there were no unexplainable discrepancies between the votes cast for
Presidential candidates and other elective positions.
(vi) Whether the IEBC carried out the verification, tallying,

and declaration of results in accordance with Article 138
(3) (c) and 138 (10) of the Constitution
[44] This issue arises from the pleadings in all the Petitions as consolidated.
Based on the said pleadings, the affidavits sworn in support thereof, and the
written and oral submissions by the parties, two viewpoints regarding the
meaning, scope, and application of Article 138 (3) (c) and (10) of the
Constitution have been advanced.
[45] On the one hand, the petitioners submit that pursuant to the foregoing
provisions, the role of verifying and tallying of votes as received from polling
stations countrywide, is vested in the Commission as a corporate entity and
not the Chairperson of the Commission. It is their argument that the
Chairperson cannot undertake this task to the exclusion of other
Commissioners. They submit that the language of Article 138 (3) (c), does
not envisage a situation where the Chairperson, can arrogate to himself
unfettered authority to verify and tally the results at the National Tallying
Centre, without involving the other Commissioners. Such action, they
contend, would not only be unconstitutional, but would be sufficient ground
without more, to nullify an election of a President-elect. In support of their
argument, the petitioners cite the Court of Appeal decision in IEBC v.
Maina Kiai & 5 Others as affirmed by this Court in Raila 2017. The
petitioners further submit that Regulation 87 (3) of the Elections (General)
Regulations is unconstitutional, to the extent that it purports to vest the
power of verification and tallying in the Chairperson of IEBC.
[46] On the other hand, the 1st, 2nd and 3rd respondents submit that the
power to verify, tally, and declare results of a Presidential Election at the
National Tallying Centre, is the exclusive preserve of the Chairperson of
IEBC. According to them, there is nothing unconstitutional about Regulation
87 (3) of the Elections (General) Regulations. The said Regulation, the
respondents submit, makes no mention of Commissioners, other than the
Chairperson. At any rate, the respondents argue, Article 138 (3) (c) of the
Constitution, does not envisage a situation where it is the Commissioners
who personally undertake the task of verifying and tallying the results as
entered onto the thousands of Forms 34A. Such an undertaking, would be
humanly impossible, they submit. For good measure, the respondents
submit that Section 11A (a) of the IEBC Act provides that the Chairperson
and members of the Commission are responsible for the formulation of
policy and strategy of the Commission and oversight. In their view, the Act
does not contemplate a situation where Commissioners would be directly
involved in the verification and tabulation of Presidential Election results.
The task of verification and tallying, submit the respondents, is executed by
staff of the Commission under the direction and supervision of the
Commission Secretary, who in turn reports to the Chairperson.
[47] As to whether the Chairperson acted unilaterally in verifying and

tallying the Presidential Election results at the National Tallying Centre, the
petitioners claim that indeed, this is what happened. It is the petitioners’ case
that the Chairperson, published Gazette Notice No. 4956 of 2022 in which
he designated himself as the ‘Presidential Returning Officer’, a position
unknown in law and the Constitution. Having done so, the petitioners state
that the Chairperson proceeded to conduct the verification and tallying
process, to the exclusion of the other Commissioners each of whom he had
assigned peripheral roles unrelated to the verification and tallying exercise.
[48] On his part, the Chairperson of IEBC submits that although he has the
exclusive authority to verify and tally the Presidential Election results as
received at the National Tallying Centre, he did involve all the other
Commissioners in the exercise, before eventually declaring the final result.
He submits that he did this in the spirit of teamwork. The Chairperson of
IEBC states that indeed, the four Commissioners were involved in the
preparation of the 9th August General Elections from the time of their
swearing into office, all the way to the verification and tallying of the results
at the National Tallying Centre, until they withdrew from the exercise, just
when he was set to declare the final result.
[49] Having considered all parties’ submissions, we find that, pursuant to
Article 138 (3) (c) of the Constitution, the power to verify and tally
Presidential Election results as received at the National Tallying Centre, vests
not in the Chairperson of IEBC, but in the Commission itself. The latter
carries out this exercise through its secretariat staff, technical personnel, and
any other persons hired for that purpose under the oversight and supervision
of the Chairperson, and other members of the Commission. In line with this
Court’s decision in Raila Amolo Odinga & Another v. Independent
Electoral and Boundaries Commission & 2 Others [2017] eKLR
(Raila 2017) and the Court of Appeal in Independent Electoral and
Boundaries Commission v. Maina Kiai & 5 Others [2017] eKLR
(Maina Kiai Case), we also find that the Chairperson cannot arrogate to
himself the power to verify and tally the results of a Presidential Election, to
the exclusion of the other members of the Commission. Indeed, Article 138
(10) of the Constitution, although the power to declare the result of a
Presidential Election after verification and tallying, is vested in the
Chairperson, he does so only as a delegate of the Commission.
[50] Consequently, to the extent that Regulation 87 (3) of the Elections

(General) Regulations purports to vest the power of verifying and tallying
Presidential Election results, as received at the National Tallying Centre,
solely on the Chairperson to the exclusion of other members of the
Commission, the same is contrary to and inconsistent with the provisions of
the Constitution.
[51] That said, we however take cognizance of the fact that the 5th, 6th, 7th and
8th respondents herein, actively participated in the verification and tallying
exercise, from the beginning, up-to and until just before the declaration of
the result by the Chairperson. They took turns announcing the results as
verified and tallied and were present and active during the actual verification
and tallying at Bomas. An example is Justus Nyang’aya, stood on the podium
to announce to the public, an adjustment that had been occasioned by errors
of tabulation.
[52] The events of 15th of August, 2022 therefore came as a surprise. As the
public waited for the Chairperson of the IEBC to declare the final result,
sporadic violence broke out at Bomas. The violence was swiftly contained by
security forces, but there was unexpected drama, as two different factions of
the Commission began to emerge. Kenyans found themselves watching an
appalling split screen scenario on their television sets. On one part of the
screen was the Chairperson, readying himself to declare the result in
accordance with Article 138 (10) of the Constitution. On the other part of the
screen were four Commissioners on the lawns of the Serena Hotel-Nairobi,
from where they announced that they would not “own” the results that were
soon to be declared by their Chairperson.
[53] The four Commissioners informed the public of their rejection of the
yet to be announced results, terming them “opaque” due to the manner in
which the Chairperson had been conducting the verification and tallying
exercise. In his affidavit dated the 25th August, 2022 Justus Nyang’aya
averred that the Chairperson’s actions during the tallying and verification
exercise at Bomas, made it difficult to ascertain the total number of votes
cast, and the actual number of votes attained by each candidate, so as to
enable him authoritatively state whether the Commission had declared
accurate results.
[54] All the petitioners have anchored their arguments for the nullification
of the 9th August Presidential Election, inter alia, on the walk-out from the
Bomas by the four Commissioners. They contend that by rejecting IEBC’s
results on grounds of opaqueness of the verification and tallying process,
they called into question, the credibility of the entire election. They further
submitted that being in the majority out of the seven-member Commission,
their view should prevail and the election should be nullified. It is the
petitioners’ argument, therefore, that a dysfunctional Commission cannot
deliver a credible election.
[55] We note that apart from their eleventh-hour denunciation of the

verification and tallying process, and their averments regarding the conduct
of the Chairperson, the four Commissioners have not placed before this
Court, any information or document showing that the elections were either
compromised or that the result would have substantially differed from that
declared by the Chairperson of IEBC. Critically, they have not explained why
they participated in a verification process when they knew that it was opaque
up until the last minute. Indeed, at the Serena Hotel press briefing, the four
Commissioners acknowledged that thus far, the entire election had been
managed efficiently and credibly. The Chairperson on his part, did not make
matters any better by maintaining a stoic silence even as things appeared to
be falling apart. All this in our view, points to a serious malaise in the
governance of an institution entrusted with one of the monumental tasks of
midwifing our democracy. An institution that obviously needs far-reaching
reforms, of which we shall say more in our detailed reasons.
[56] But are we to nullify an election on the basis of a last-minute boardroom

rapture (the details of which remain scanty and contradictory) between the
Chairperson of the Commission and some of its members? In the absence of
any evidence of violation of the Constitution and our electoral laws, how can
we upset an election in which the people have participated without
hindrance, as they make their political choices pursuant to Article 38 of the
Constitution? To do so, would be tantamount to subjecting the sovereign will
of the Kenyan people to the quorum antics of the IEBC. This we cannot do.
Clearly the current dysfunctionality at the Commission impugns the state of
its corporate governance but does not affect the conduct of the election itself.
[57] In view of the foregoing, we are satisfied that notwithstanding the

divisions apparent between the Chairperson and the four Commissioners,
IEBC carried out the verification, tallying, and declaration of results in
accordance with Article 138 (3) (c) and (10) of the Constitution.
(vii) Whether the declared President-elect attained 50%+1 of all

the votes cast in accordance with Article 138(4) of the
Constitution
[58] The 1st, 2nd and 3rd petitioners averred that the 1st respondent did not garner
50% + 1 of the total votes cast and therefore did not meet the threshold provided
by Article 138(4)(a) of the Constitution. They anchored their claims on the basis
that in order to determine whether a candidate has attained 50% + 1 of the votes
cast, this ought to be calculated based on the total number of votes cast excluding
rejected votes. They urged that 50% of 14,353,165 which in their view were the valid
votes cast, amounted to 7,176,582.77 votes. They contended that by attaining
7,176,141 votes, the 1st respondent did not meet the constitutional threshold to be
declared President-elect.
[59] Supporting the claim that the 1st respondent did not meet the 50%+1
constitutional threshold was the 6th petitioner. His contention was founded on the
backdrop of a press briefing issued by the Chairperson of IEBC after the official
closure of voting on 9th August 2022. According to the 6th petitioner, the
Chairperson of IEBC announced that the voter turnout was 65.4% of the total
number of registered voters, based on the verification of the KIEMS kits which
were functional during the process of voting. In addition, the 6th petitioner urged
that the voter turnout of 65.4% did not include 238 polling stations where the
KIEMS kits had malfunctioned necessitating use of the manual register. It was
therefore urged that the minimum number of votes cast could not be less than
14,466,779. Additionally, that, this number was bound to increase once the
number of votes from the areas that used the manual register were included. The
6th petitioner further claimed that a summation of the minimum number of votes
cast and untallied manual votes would represent the actual voter turnout.
[60] In challenging the declaration made by the Chairperson of IEBC, the 6th
petitioner averred that the final tally published in Form 34C only accounted for
14,326,641 votes cast, including 113,614 rejected ballots. The 6th petitioner
contended that this tally did not factor in 140,138 votes cast using the manual
register. The 6th petitioner computed this number by subtracting 14,326,641
declared votes cast from 14,466,779 generated by the 6th petitioner as representing
65.4% of the voter turnout.
[61] Referring to the tallies in Form 34C, the 6th petitioner summed the number
of votes cast for each candidate as follows: Raila Odinga (6,942,193), William Ruto
(7,176,141), Waihiga Mwaure (31,987) and George Wajackoyah (61,969) adding to
a total of 14,213,027. He then added 140,138 alleged to be untallied votes. This
yielded a total of 14,353,165 total valid votes which the 6th petitioner used to
compute the percentages garnered by each candidate as follows: Ruto (49.9%),
Raila (48.372%), Waihiga (0.22%) and Wajackoyah (0.431%). It is on this basis,
that the 6th petitioner grounded the claim that none of the candidates met the
Constitutional threshold set in Article 138(4)(a).
[62] IEBC and its Chairperson, disputed the 6th petitioner’s claim. They submitted
that the declaration of results is based on the number of people identified as having
voted on the KIEMS kit and not the total persons on the voter’s register, as alleged.
They contended that the final voter turnout comprising of voters who were
identified through the KIEMS kits and those who voted manually was 64.76% and
not 65.4% as alleged by the petitioners. They urged, that the announcement error
by the Chairperson of IEBC on 10th August 2022, was immediately clarified during
the same press briefing. Evidence of this correction was provided to this Court in
the Affidavit of the 1st and 2nd respondents in Presidential Election Petition No.
E007 of 2022.
[63] According to IEBC and its Chairperson, 14,239,862 voters were identified
using the KIEMS kit while 86, 889 voters were identified using the printed voter
register. Thus, the total valid votes cast were 14,213,137 while the total number
of rejected ballots were 113,614 constituting 14,326,751 total votes cast. They
illustrated that the 1st respondent garnered 7,176,141 votes against 14,213,137 total
valid votes cast yielding a percentage of 50.49% to meet the requisite constitutional
threshold for a candidate to be declared President-elect. In the upshot, the
percentage attained by each candidate was as follows: Raila Odinga (48.84%),
William Ruto (50.48%), David Waihiga Mwaure (0.22%) and George Luchiri
Wajackoyah (0.43%).
[64] IEBC and its Chairperson also admitted that the KIEMS kits malfunctioned
in 235 polling stations necessitating use of the printed voter register. In these
polling stations, back up KIEMS kits were later deployed for purposes of results
transmission.
[65] The 1st respondent in response to the question of 50%+1 constitutional

threshold, maintained that he attained the threshold under Article 138(4) of the
Constitution as elaborated by the IEBC and its Chairperson.
[66] This Court has considered the differing formulas and threshold arguments
presented by various parties to this Petition. While the 1st, 2nd and 3rd petitioners
raised pertinent questions connected to this issue, we shall address them together
with those of the 6th petitioner who has addressed and focused on the issue as
specifically framed in detail.
[67] It must be restated that the case made by the 6th petitioners concerns a data-
specific threshold enunciated under Article 138(4) of the Constitution without the
attainment of which, there can be no declaration. This data-specific threshold is
what this Court in John Harun Mwau & 2 Others v. IEBC & Others,
Petitions Nos. 2 and 4 of 2017 (Consolidated) referred to as the ultimate yardstick
for determining the winner in a Presidential contest.
[68] In Raila Odinga & 5 Others v. IEBC & 4 Others, Petition No. 5, 3 & 4
of 2013 (Consolidated), [2013] eKLR, (Raila 2013), the Court asserted that
rejected ballot papers do not constitute a vote cast to be included in calculating the
final tally in favour of a Presidential candidate. We are not persuaded by the
amicus curiae’s (Law Society of Kenya) brief who attempted to persuade us to
reconsider our position on this finding. We reiterate that rejected votes cannot be
taken into account when calculating whether a Presidential candidate attained
50% +1 of votes cast in accordance with Article 138 (4) of the Constitution.
[69] Similarly, in the same Raila 2013, the Court further laid down the
parameters of burden and standard of proof in electoral disputes. More
specifically, the burden and standard of proof required in disputes challenging the
outcome of a Presidential election.
At Paragraph 203, the Court clarified that:
“In the case of data-specific electoral requirements (such as those
specified in article 138(4) of the Constitution, for an outright win
in the Presidential election), the party bearing the legal burden of
proof must discharge it beyond any reasonable doubt.”
[70] The question that follows, was whether the petitioners challenging the
attainment of the 50%+1 constitutional threshold and the computations by the 6th
petitioner in general, met the standard of proof settled by this Court in Raila
2013.
[71] The premise of the 6th petitioner’s percentage computation was a press
briefing made by the Chairperson of the IEBC on 10th August 2022. When the
evidential burden shifted to IEBC and its Chairperson as it does in election cases,
they produced video evidence correcting the percentage voter turnout to 64.6% (at
the time of the briefing). This percentage however did not include reports from all
the KIEMS kits and 86,889 voters who were identified manually using the printed
Register of Voters.
[72] In our view, the assertion by the 6th petitioner that the percentage voter
turnout was, firstly, predicated on the uncorrected percentage given by the
Chairperson of IEBC, was negated by evidence adduced to prove the correction.
Secondly, the 6th petitioner based his percentage of voter turnout on the total
number of registered voters while the Chairperson of IEBC made reference, in the
press briefing, to the number of registered voters who were identified through the
KIEMS kits, progressively.
[73] The 6th petitioner also asserted that rounding off of votes cast in a Presidential
Election as a means of assessing the threshold under Article 138(4) of the
Constitution “kills” and “births” voters, which is illegal and unconstitutional. We
have deliberated on this proposition and found that it is not mathematically sound
and that the rounding off done by IEBC and its Chairperson was correct.
[74] Consequently, we find that the petitioners did not provide a watertight case
to warrant the setting aside of the results of the Presidential Election on the basis
of not having met the threshold provided under Article 138(4)(a) of the
Constitution.
[75] On voter turnout, therefore, we find that the formula predicated on the
number of voters identified through the KIEMS kit progressively and used by IEBC
and its Chairperson to generate a percentage of 64.76% was correct.
[76] Having settled the issue of voter turnout, we must ask ourselves whether in
making the declaration, the Chairperson of IEBC applied the formula in Article
138(4) of the Constitution which is:
Total votes cast (less rejected votes) = 50% +1 vote

2
Given the numbers that were presented to us by IEBC and its Chairperson, this will
translate to:
14, 213, 137

+ 1 = 7,106, 569
2
[77] The question that must inevitably follow is whether this formula when
applied, will confirm that 7,106, 569 is less than 7,176,141 which represents the
number of votes received by the 1st respondent. We find that it is. As such, on the
basis of the foregoing formula and from the numbers provided by IEBC and its
Chairperson, and the declaration by the Chairperson of the President-elect on 15th
August 2022, it is our finding that the declared President-elect attained 50%+1 of
all the valid votes cast in accordance with Article 138(4) of the Constitution.
(viii) Whether there were irregularities and illegalities of such

magnitude as to affect the final result of the Presidential
Election
[78] Although the petitioners have provided numerous averments pointing to

possible irregularities and illegalities, marked by failures of technology, alleged
voter suppression, printing and utilisation of Book 2 of 2, ill preparation by the
IEBC and its Chairperson, Commission indiscretions, transposition anomalies,
agent absences and many others, we are of the view that the pointed illegalities and
irregularities were not of such magnitude as to affect the final result of the
presidential election. We will delve into deeper details in our reasoned Judgement.
(ix) What reliefs and orders can the Court grant /issue?
[79] Article 163 (3)(a) of the Constitution provides that the Supreme Court shall
have─
“a. exclusive original jurisdiction to hear and determine
disputes relating to the election of the office of the
president arising under Article 140”;
[80] Article 140 of the Constitution in turn provides:
“1. A person may file a petition in the Supreme Court to

challenge the election of the President-elect within seven
days after the date of the declaration of the results of the
presidential election.
2. Within fourteen days after the filing of a petition under

clause (1), the Supreme Court shall hear and determine
the petition, and its decision shall be final.
3. If the Supreme Court determines the election of the

President-elect to be invalid, a fresh election shall be held
within sixty days after the determination.”
[81] In exercising its jurisdiction pursuant to these provisions, the Court sits as
an election court, with the mandate to determine the validity or otherwise of the
election of the President-elect. It is clear to us that the jurisdiction of the Court is
quite circumscribed in terms of the Orders or reliefs it can grant following the
hearing and determination of an Election Petition under Article 140 of the
Constitution.
[82] In the event the Court determines that the election of the President-elect is
invalid, it must make an Order nullifying the election. Consequently, it has also to
make an Order directing IEBC to hold a fresh election within sixty days after the
determination.
[83] Should the Court determine that the election of the President-elect is valid,
it shall issue a declaration to that effect. The Court has then as a matter of course,
make an Order dismissing the Petition, with or without costs as the case may be.
[84] In the strict sense therefore, these are the only Orders that the Court may
make under the Constitution. The Court cannot assume jurisdiction that goes
beyond the purview of Articles 163 (3) and 140 of the Constitution. However,
nothing stops the Court from issuing “Orders” or reliefs by way of
recommendations. Indeed, since 2013, this Court has issued many
recommendations arising from the determination of three Petitions challenging
the election of the President-elect. The recommendations are meant to improve
our electoral landscape and hence aid in the development of our democracy. In this
regard, the Court has been greatly aided by the contributions of amici curiae. The
Court places a heavy premium on the amici-briefs that are filed by those it admits
in such capacity.
C. FINAL ORDERS
In unanimity, we make the following orders:
i. The Presidential Election Petition No. E005 of 2022, as

consolidated with Presidential Election Petition Nos. E001,
E002, E003, E004, E007 & E008 OF 2022 is hereby
dismissed.
ii. As a consequence, we declare the election of the 1st
respondent as President-elect to be valid under Article
140(3) of the Constitution.
iii. This being a public interest, matter we order that each
party shall bear their costs.
It is so Ordered.
DATED and DELIVERED at NAIROBI this 5th Day of September, 2022.
………………………………………..……....…..
M. K. KOOME
CHIEF JUSTICE & PRESIDENT
OF THE SUPREME COURT
………………………………….…………………. ……………………………………………………...
P. M. MWILU M. K. IBRAHIM
DEPUTY CHIEF JUSTICE & JUSTICE OF THE SUPREME COURT
VICE-PRESIDENT OF THE
SUPREME COURT
…………....……………………….…………..…. …….…………….…………………..………….
S. C. WANJALA NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
………..………………….…………..….…….…. ………………..…………………………………
I. LENAOLA W. OUKO
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
I certify that this is a true copy

of the original
REGISTRAR,
SUPREME COURT OF KENYA

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REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

PRESIDENTIAL ELECTION PETITION NO. E005 OF 2022

PRESIDENTIAL ELECTION PETITION NOS. E001, E002, E003, E004,

RAILA ODINGA ……………………………………………

JOHN NJOROGE KAMAU ………….………..…..…… 2ND PETITIONER

YOUTH ADVOCACY AFRICA ………….…….…..……

KHELEF KHALIFA ……………………….……..….…..

DAVID KARIUKI NGARI ……………………..…….… 5TH PETITIONER

OKIYA OMTATAH OKOITI …………….……….….....

JULIAH NYOKABI CHEGE ……………….…….…….

WILLIAM RUTO ………………………………….…………. 1ST RESPONDENT

LAW SOCIETY OF KENYA ………………..………..………

JUDGMENT OF THE COURT

(Pursuant to Rule 23(1) of the Supreme Court (Presidential Election

THE PRESIDENTIAL ELECTION OF 9th AUGUST 2022

CANDIDATES VOTES PERCENTAGE

(i) Presidential Election Petition No. E001 of 2022 - John

B. ISSUES FOR DETERMINATION

1. Whether the technology deployed by the IEBC for the

2. Whether there was interference with the uploading and

3. Whether there was a difference between Forms 34A

4. Whether the postponement of Gubernatorial Elections in

5. Whether there were unexplainable discrepancies between

6. Whether the IEBC carried out the verification, tallying,

7. Whether the declared President-elect attained 50%+1 of all

8. Whether there were irregularities and illegalities of such

9. What reliefs and orders can the Court grant/issue?

(c) Smartmatic was procured to provide the necessary

(d) The Scrutiny Report prepared by the Registrar of this Court

(e) IEBC successfully deployed a Biometric Voter Register

(f) In compliance with Section 6A of the Elections Act, 2011,

(ii) Whether there was interference with the uploading and

[20] It is our finding that─

(a) No credible evidence was presented to prove that anyone

(e) Regarding the allegation that the integrity of the Public

(f) The RTS was configured on a Virtual Platform Network

(g) A review of some of the logs presented as evidence of staging

(iii) Whether there was a difference between Forms 34A uploaded

[25] It is our finding that─

(a) There were no significant differences captured between the

(b) No credible evidence was presented to support the

(c) The affidavits of Celestine Anyango Opiyo and Arnold

(d) This Court cannot countenance this type of conduct on the

(e) Section 114 of the Penal Code states that:

One of the most serious losses an advocate may ever suffer

(f) The contents of the affidavit of John Mark Githongo, which

(g) We turn to Form 34A for Gacharaigu Primary School

(iv) Whether the postponement of Gubernatorial Elections in

(v) Whether there were unexplainable discrepancies between

(vi) Whether the IEBC carried out the verification, tallying,

[47] As to whether the Chairperson acted unilaterally in verifying and

[50] Consequently, to the extent that Regulation 87 (3) of the Elections

[55] We note that apart from their eleventh-hour denunciation of the

[56] But are we to nullify an election on the basis of a last-minute boardroom

[57] In view of the foregoing, we are satisfied that notwithstanding the

(vii) Whether the declared President-elect attained 50%+1 of all

[65] The 1st respondent in response to the question of 50%+1 constitutional

At Paragraph 203, the Court clarified that: