The High Court has dismissed a bid by Busia Senator Okiya Omtatah to have the national tallying and verification of presidential election results declared unconstitutional.
In its judgment, 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 challenged the establishment and operation of the national tallying centre, arguing that the Constitution places the primary and final responsibility for tallying, verifying and declaring presidential results at the constituency level.
He had also sought orders stopping the Independent Electoral and Boundaries Commission (IEBC) from re-tallying or re-verifying presidential results after they had been announced by constituency returning officers.
The court, however, 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 and at least 25 per cent of the votes cast in more than half of the counties.
The court said 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.
It said the national exercise was a “necessary and rational corollary” of the Constitution’s unique eligibility threshold for the presidency.
The court also rejected the argument that the national tallying process amounts to unjustified differential treatment contrary to Article 27 of the Constitution.
On discrepancies between electronically transmitted results and the physical results delivered from polling stations, the court declared that the result verified and declared at the respective polling station would prevail.
The court further declined to quash Sections 39(1C) and 39(1G) of the Elections Act and Regulation 83 in their entirety.
The judges found that the petitioners had adequately presented their case on the central question concerning the constitutionality of the provisions relating to the finality of constituency results.
However, the court said the threshold had not been met regarding claims based on Article 35, ballot reconciliation, government timelines and certain Article 27 arguments.
“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.
The court also urged Parliament to consider reforms to election laws ahead of the 2027 General Election.
It invoked the political philosophy concept of the “veil of ignorance”, associated with philosopher John Rawls, saying legislators should design neutral electoral rules without knowing who would benefit from them.
The court said such an approach would help ensure that election laws serve the wider interests of Kenyans rather than “narrow, temporal and variable goals” of the political class.
