Delays caused by a courts administrative process cannot be visited upon a party seeking to file a supplementary record of appeal

Brief facts

The applicant filed the instant application seeking among others the enlargement time within which they should file a supplementary record of appeal. It was their argument that the record of appeal arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No. 352 of 2019 dated September 23, 2021 was incomplete as the duly sealed notice of appeal and order appealed from had not been filed. It was further their contention that on September 28, 2021 an application was made for the certified copy of the order arising from that judgment, however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules, 2010, which they did by forwarding the draft order to the respondents on September 29, 2021 for approval. 

In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the notice of appeal by the Court of Appeal on January 26, 2022. The applicants further contended that the certified order dated September 23, 2021 was issued following further follow up efforts resulting in the filing of the instant application. The respondents argued that the delay was evidently inordinate and offended the principle that there should be an end to litigation and that they would suffer irreparable loss if the orders sought were granted. 

Issues

1. Whether delays caused by courts administrative processes to the detriment of a party seeking to file a supplementary record of appeal could be visited upon such a party.
2. What were the principles for grant of an order of extension of time to file a supplementary record of appeal?

Held

1. Under rule 15(2) of the Supreme Court Rules, 2020, the court had unfettered discretionary powers to extend the time limited by the Rules or by any of its decisions and any person intending to appeal to the court was required by rule 31(1) of the Rules to file the notice of appeal within fourteen days from the date of the decision intended to be challenged.
2. From the record, after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021. The applicants follow up efforts preceding the issuance of the order were not disputed by the respondents. Delays caused by courts administrative processes to the detriment of a party could not be visited upon such a party because such a delay was beyond a partys reach.
3. The principles for grant of an order of extension of time were that an applicant had to give sufficient reasons for any delay and that the period of delay was nonetheless an important consideration in the courts exercise of discretion to grant or deny the extension.
4. In spite of the respondents argument that the applicants ought to have followed up physically at the registry, the application met the threshold of extension of time as the delay of two months in the instant matter was not inordinate as it was sufficiently explained, and it was not occasioned by the applicant but by the court. That explanation was reasonable and there was no prejudice to be occasioned to the respondents.

No conflict between articles 177(1) and 177(4) of the Constitution on election to the county assembly

Brief facts

The appellant filed a petition at the High Court challenging the date of the second general elections under the Constitution of Kenya, 2010 (Constitution) which was scheduled by the 2^nd respondent, the Independent Electoral and Boundaries Commission (IEBC) on August 8, 2017. The first general elections after the promulgation of Constitution was held on March 4, 2013. As such, they claimed that holding the general elections on the aforementioned date would unconstitutionally reduce the Members of the County Assemblies (MCAs) term in office by a period of eight (8) months, taking into account that their term, as fixed by article 177(4) of the Constitution, was five (5) years. In essence, they contended that there was an apparent conflict between articles 177(1)(a) and article 177(4) of the Constitution. 

The appellant sought among other reliefs a declaration that the term of office of the then existing MCAs was to end on March 5, 2018, being five (5) years from the date of the general elections held on March 4, 2013. The High Court partly allowed the petitions and found that the tenure of office for Members of Parliament (MPs) and MCAs was different. The High Court found that for MCAs, their position was muddied by article 177(4) of the Constitution. The court found that that was in conflict with article 177(1)(a) and that it was not possible to give effect to both provisions at the same time. The court thus found that the term of office for MCAs was plainly set out in articles 177(4) and 194(f) so that a county assembly was elected for a term of five years expiring at the end of the term of the assembly. The court upheld the election date of August 8, 2017. 

Aggrieved by the decision, the 1^st and 2^nd respondents filed an appeal at the Court of Appeal while the 3^rd respondent filed a cross appeal whose main contention was that it would be impossible to hold the following general elections on August 8, 2017 without limiting the term of county assemblies. The Court of Appeal found that the validity or legality of any the Constitutions provisions could not be questioned by any court. The Court of Appeal further found that articles 177(1)(a) and 177(4) could not be construed to be in conflict or to contradict each other. The Court of Appeal allowed the appeal and set aside the judgment of the High Court. The appellant aggrieved by the decision of the Court of Appeal filed the instant appeal.

Issues

1. Whether there was conflict between article 177(1) of the Constitution which provided for election to the county assembly to be on the same day as a general election of members of Parliament, being the second Tuesday in August, in every fifth year and article 177(4) of the Constitution which provided for that a county assembly was elected for term of five years. 
2. Whether the holding of the second general elections under the Constitution of Kenya, 2010 in August 8, 2017 was unconstitutional for reducing the terms of office for holders of elective posts below the five-year mark.
3. What were the requirements to be met for one to appeal to the Supreme Court under article 163(4)(a) of the Constitution as of right in a matter involving the interpretation or application of the Constitution? 
4. Whether the High Court had the jurisdiction to determine matters on the enforcement of rights and fundamental freedoms touching on employment and labour.
5. What was the nature of transitional and consequential provisions in the Constitution?
6. What were the principles of application of the doctrine of legitimate expectation?

Relevant provisions of the law

Constitution of Kenya, 2010

Article 163 - Supreme Court

(4) Appeals shall lie from the Court of Appeal to the Supreme Court

(a) as of right in any case involving the interpretation or application of this Constitution; and

Article 177 - Membership of county assembly

(1) A county assembly consists of

(a) members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;

(4) A county assembly is elected for a term of five years.

Held

1. The courts appellate jurisdiction was set out in article 163(4) of the Constitution. So as to bring the appeal as of right pursuant to article 163(4)(a) of the Constitution, it had to be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It was the interpretation or application of the Constitution by the Court of Appeal that formed the basis of a challenge to the court. So that, where the dispute had nothing or little to do with the interpretation or application of the Constitution, the court under article 163(4)(a) would have no jurisdiction to entertain an appeal brought under that provision. 

2. The instant matter was not a mere electoral dispute arising from or touching on an election. Joinder of the Salaries and Remuneration Commission was unnecessary as the issues before court were not on the amount of compensation to be paid to the MCAs for services rendered. Rather, they included questions of interpretation of articles 177(1) and 177(4) of the Constitution as well as whether MCAs were entitled to damages for the reduced term in office as a consequence of the election date in 2017. 

3. The question of enforcement of rights and fundamental freedoms even touching on the employment and labour was within the competence of the High Court pursuant to article 22 of the Constitution. Articles 23 and 165 of the Constitution fortified that position as they were the provisions that gave the High Court jurisdiction to hear and determine applications for redress of denial, violation or infringement of rights or fundamental freedoms in the Bill of Rights. Consequently, the appeal fell squarely within the ambit of article 163(4)(a) and the court had jurisdiction to entertain the appeal. 

4. Article 2(3) of the Constitution stipulated that the validity or legality of the Constitution was not subject to challenge by or before any court or other State organ. The Court of Appeal was not determining the constitutionality or otherwise of articles 177(1) and (4) of the Constitution, only on the interpretation and application as regards the context of the instant case. To purport to question the validity of a constitutional provision was to question the very foundation of authority of the courts and was not only contra article 2(3) but also against the will of the people of Kenya. 

5. Article 259 of the Constitution gave the approach to be adopted in construing the Constitution. By that provision therefore, the Constitution called for its holistic interpretation. No constitutional provision was more superior to the other. They all ranked equally and had to be all be interpreted and applied together to give them their full tenor and meaning. The court was guided by article 2(1) and (3) of the Constitution which provided for the supremacy of the Constitution over other laws and thereby its validity and legality were not subject to challenge by or before any court or other State organ. 

6. The Constitution was consistent about the date of the general elections in various articles other than article 177(1). The election date was predicated on the election of MPs which was provided for under article 101(1). The designated date for general elections was not a set date but rather the second Tuesday in August, in every fifth year. Further, the Constitution provided that all elections for the positions of President, governor, senator, MPs and MCA had to be held on the day. 

7. Kenya held its third general elections in 2022 since promulgation of the Constitution in August 27, 2010. The 2017 general elections were held in August 8, 2017. While the 2022 general elections were held in August 9, 2022, thereby fulfilling the requirement of holding general elections every five years. There did not exist a conflict between articles 177(4) and 177(1) of the Constitution, apparent or otherwise. If the two were to be put side by side, they could both be given effect at the same time as demonstrated by the continued election cycle. 

8. The first general elections following promulgation of the Constitution were held on March 4 2013. That date was arrived at following the decision by the Court of Appeal in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR. That case was distinguishable from the instant dispute as the main issue in contention therein was the first general election and not subsequent elections. The courts were not called upon to make a determination on harmonizing the terms of office of MCAs pursuant to article 177(1) and (4) contrasted with other elective posts. 

9. The date of the first elections, March 4, 2013, was informed by the transition clauses of the Constitution. More specifically, section 9(1) of the Sixth Schedule to the Constitution which provided that the first elections under the Constitution were to be held within sixty days after the dissolution of the National Assembly. Vide Legal Notice No. 1 of 2008, the term of the National Assembly commenced in January 15, 2008 and ended on January 14, 2013. Hence, sixty days later, was March 4, 2013, achieving the first hurdle in transitioning the elections of Kenya from the old constitutional dispensation to the Constitution of Kenya, 2010.

10. The transitional provisions of the Sixth Schedule to the Constitution were only for a limited period of time and once they served their purpose, the nation reverted to the permanent provisions of the Constitution. On general elections, the date stipulated in articles 101(1), 102(1), 136(2)(a), 177(1)(a) and 180(1) was reverted to. That was such that, after the first general elections was held, IEBC then had a constitutional duty to apply those provisions of the Constitution with regard to the future elections. That was not a simple duty, as IEBC had to decide between holding the elections in August of 2018, five years after 2013 or alternatively in August of 2017. IEBC elected to hold the second general elections in August 8, 2017. that date fell short of the five-year mark by eight (8) months. That was not just for the MCAs but for all elective positions. 

11. Perhaps what informed IEBCs decision regarding the election date in 2017, was to ensure the terms in office for all elected officials would not fall outside the constitutionally stipulated five years. Holding the election in August 2018 would have meant that the term in elective office for all officials would have been over and above the five-year timeline by approximately five months. The court could infer that IEBC was trying to avoid generating a gap whereby the holders of the various elective offices would either not be legally in office, or if they elected to go home, then the elective offices would be vacant for eight months. The ramifications of such scenarios were far greater than that the office of the MCAs, as it cut across all elective positions. One such office being that of the President. That would have had the resultant effect of placing Kenya in constitutional crisis. Such an effect would not have been the intention of the framers of the Constitution and would not have been a reflection of the will of the people. 

12. Transitional and consequential provisions in the Constitution were supposed to be a bridge between two constitutional dispensations. Those provisions provided for the orderly implementation of law helping to avoid the shock that could result from an abrupt change in the law. However, transitions were not always smooth and often times called for compromise. The effects of the transition in the Kenyan context did not end with the holding of the first general elections pursuant to the Sixth Schedule to the Constitution. One compromise that had to be made was the date of the second general elections.

13. By choosing to hold the elections on August 8, 2017, IEBC were selecting the more rational and judicious option of having the terms in office for holders of elective posts, end a few months short of the five-year mark. Rather than ending five months over and above their term limits. A secondary consequence of that choice was ensuring a smooth transition from one Government to another. The eight-month gap was a compromise that the Kenyan people and by extension, their elected leaders had to make in order to complete the transition from the old constitutional order to the Constitution of Kenya, 2010. The third general elections, falling on the fifth year being August 9, 2022 from August 8, 2017, meant that the transition was complete. 

14. The decision by IEBC to hold the second general elections under the Constitution of Kenya, 2010 on August 8, 2017 was not unconstitutional. IEBC was seeking to give effect to the will of the people as expressed in the provisions of the Constitution in a manner that resonated with a purposive interpretation of articles 177(1) and as read with article 259 the Constitution. 

15. There was a reduction of the term of office of MCAs elected in the first general elections under the Constitution by virtue of the second general elections being held in August 8, 2017. 

16. Pursuant to article 38(3) of the Constitution, the MCAs had a right to hold office. However, they held elective office subject to application and interpretation of the Constitution. The Constitution required a holistic and purposive interpretation, which included considering the provision of article 24 of the Constitution on limitations of rights and freedoms. The implication of that was that, outside the non-derogable rights enshrined in article 25 of the Constitution, the rest were not absolute hence subject to some forms of limitations provided that the limitation did not go against article 24.

17. Legitimate expectation was a doctrine well recognized within the realm of administrative law and well reflected in judicial practice in Kenya. The principles of application of legitimate expectation were as follows; 

1. there had to be an express, clear and unambiguous promise given by a public authority;
2. the expectation itself had to be reasonable;
3. the representation had to be one which it was competent and lawful for the decision-maker to make; and
4. there could not be a legitimate expectation against clear provisions of the law or the Constitution.

18. The Constitution provided under article 1 that all sovereign power belonged to the people of Kenya and should be exercised only in accordance with the Constitution. It further provided that the people of Kenya could exercise their sovereign will either directly or indirectly through their democratically elected representatives. Sovereign power under the Constitution was delegated to Parliament and the legislative assemblies in the county governments, the national executive and the judiciary and independent tribunals. That was reiterated in Chapter Six of the Constitution, more specifically article 73.

19. It was due to public trust that elections were considered to be sui generis affecting not just the contestants for public office but the people on whose behalf they vied. Public office to which a portion of the sovereignty of the people, either legislative, executive or judicial, attached for the time being and which was exercised for the benefit of the public, did not vest in the holder of the office the right to property of the office. 

20. The holders of elective office vied and held office, not for their private benefit but for the benefit of their constituents on whose behalf they acted. The holders of such office retained their rights to fair administrative actions, access to justice and fair hearing as enshrined in articles 47, 48 and 50 of the Constitution. They could not be removed from office, other than by operation of the law. In the instant suit, it was the interpretation and application of the constitutional requirement to hold elections on the second Tuesday in August, in every fifth year, that imposed the need to hold the second general elections on August 8, 2017 thereby occasioning the gap of eight (8) months. 

21. The MCAs term in office ended by operation of the Constitution, thereby running afoul the principles of legitimate expectation. Further, election into public office was not anchored on a promise. The appellants claim for legitimate expectation lacked merit. The claim that the MCAs had proprietary rights to the unexpired eight-month period also failed. 

The Senate had powers to summon county governors in the performance of its oversight role over county revenue

Brief facts

On February 8, 2014, the Senate Committee on County Public Accounts and Investments summoned fifteen county governors to appear before it to answer questions on county financial management. Several county governors appeared before the Committee save for four who expressly declined to honor the summons. The four governors instead filed a petition before the High Court challenging the summons. On April 16, 2014, the High Court found that the Senate was well within its constitutional mandate to issue the summons.

Consequently, the Senate issued fresh summons to the governors, requiring them to appear before the Committee on August 26, 2014. However, the governors of Bomet, Kiambu, Muranga and Kisumu Counties declined to honor the summons despite the court orders. That prompted the Senate to pass a resolution, in accordance with section 96 of the Public Finance Management Act (PFMA), recommending that the Cabinet Secretary, Treasury halts the transfer of funds to the concerned county governments and the Controller of Budgets withholds the approval of withdrawal of public funds by those county governments. 

Aggrieved, the governors filed a second petition on among other grounds that under articles 96 and 226(2) of the Constitution of Kenya, 2010 (the Constitution)and section 148 of the PFMA, the Senate could not summon governors to personally appear before it to answer questions of county government finances.

The High Court held among others that the Senate could summon governors to answer questions on county public finance management and that the resolution passed by the Senate directing the National Treasury and Controller of Budget not to release funds to counties was unconstitutional. Aggrieved, the respondents filed an appeal at the Court of Appeal while the appellant filed a cross-appeal at the same court. The Court of appeal dismissed both the appeal and cross-appeal for lack of merit and upheld the High Court judgment. Aggrieved by the Court of Appeal decision, the appellants filed the instant consolidated appeals.

Issues

1. Whether the Senate was constitutionally empowered to summon governors to appear before it or any of its committees for purposes of answering questions and providing requisite information. 
2. Whether the Senates oversight function was limited to nationally allocated revenue. 
3. Whether County Assemblies had the power of first tier oversight over county governments revenue whether nationally allocated or locally generated. 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 96 - Role of the Senate

(1) The Senate represents the counties, and serves to protect the interests of the counties and their governments.

(2) The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.

(3) The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.

Held

1. Article 96 of the Constitution as read together with articles 110 to 112 of the Constitution, left no doubt that the Senate was established to perform fundamental roles of governance concerning counties; they were legislative, budgetary and oversight. It had been granted considerable latitude in ensuring that county governments operated at optimal and within accountability standards, if the objectives of devolution were to be realized. There was no way by which the Senate could perform such an important role without having the powers to summon a governor and to require him/her to provide answers and offer explanations regarding the management of the county finances and related affairs. Without such power, the Senate would not be able to protect the interests of the counties, nor would it be able to exercise effective oversight over national revenue allocated to counties.
2. Article 96(3) of the Constitution was buttressed by section 8 of the PFMA which provided for the responsibilities of the Senate Budget Committee in public finance matters. For the Senate to perform its functions as stipulated in section 8, it had to incorporate the input of the respective chief finance officers of the counties, who were in turn appointed by the governor. The office that was ultimately answerable to the Senate was that of the governor.
3. The Senate was constitutionally empowered, to summon governors to appear before it or any of its committees for purposes of answering questions and providing requisite information. In appearing before Senate, there was nothing to stop a governor from going on with his/her technical team from the county executive. By the same token, if the Senate was of the view that the questions to be answered or information to be provided did not need the personal input of the governor, it could restrict its summons to the relevant county official or executive committee.
4. Article 185(3) of the Constitution provided that a County Assembly, while respecting the principle of separation of powers, could exercise oversight over the county executive committee and any other county executive organs. Article 185(3), although permissively framed, conferred powers upon county assemblies to oversight the county executive. That therefore meant that among other things, county assemblies could question the county executives management of county affairs, including the use of revenue. What the County Assemblies could not do was to usurp the role of the county executive under the guise of oversight, for that would offend the principle of separation of powers. The County Assemblies could not for example, take over the role of implementing Government policies and projects. Their role was to provide checks and balances to the county executives so as to promote transparency and accountability in the manner county affairs were run.
5. Article 96(2) of the Constitution, which conferred legislative powers upon the Senate regarding Bills concerning county governments, had to be read together with articles 109 to 113 of the Constitution. Those provisions entrusted the Senate with the mandate of legislating for county governments in fields that spanned the entire spectrum of governance. With regard to county finances, the foregoing provisions did not limit Senates legislative power to the nationally allocated revenue.
6. A holistic reading of all the relevant provisions of the Constitution and the law, put in context, led to the conclusion that both the Senate and County Assemblies had the power to oversight county revenue whether nationally allocated or locally generated. The fact that county revenue was locally generated did not remove it from the purview of Senate oversight. Such revenue fell within the rubric of public finance whose use had to remain under the radar of scrutiny and oversight by the State organs established for that purpose. Similarly, the fact that county revenue was nationally allocated did not place it beyond the oversight of county assemblies.
7. The purpose of the Constitution was to entrench good governance, the rule of law, accountability, transparency, and prudent management of public finances at both levels of Government. Such grand purpose could not be served if either the Senate or county assemblies began to develop centres of oversight/influence. In that regard, the county assemblies provided the first tier of oversight while the Senate provided the second and final tier of oversight.
8. By exercising its oversight role in the manner determined, the Senate could not be said to be violating the principle of separation of powers. There was no potential danger of encroachment upon the mandate of the independent offices of the Controller of Budget or the Auditor General. What the Senate could not do under the guise of oversight, was to usurp the county executives mandates or to purport to supervise County Assemblies.

The High Court did not have the jurisdiction to overturn or order the Court of Appeal to try an appeal de novo a final decision of the Court of Appeal which was determined by a Judge who was removed by the vetting board.

Brief facts

The instant petition of appeal sought to set aside the judgment of the Court of Appeal in Civil Appeal No. 404 of 2018 delivered on which affirmed the High Court. The appellants claim was predicated on the outcome and report by the Judges and Magistrates Vetting Board, (vetting board). 

At the High Court the appellant sought to have the decision of the Court of Appeal that was the apex time at the time of the appeal to be overturned on account that one of the judges that determined the appeal was unsuitable to continue holding the position of Judge of the Court of Appeal. The petition was dismissed on grounds that the High Court lacked the jurisdiction to order the Court of Appeal to try an appeal de novo or to overturn a decision of the Court of Appeal. The Court of Appeal affirmed the decision of the High Court. Aggrieved the appellant approached the Supreme Court for orders that the High Court erred in law in finding that it had no jurisdiction to entertain the matter.  

Issues

1. Whether the High Court had the jurisdiction to overturn or to order the Court of Appeal to try an appeal de novo a final decision of the Court of Appeal which was determined by a Judge who was removed by the vetting board.
2. Whether decisions by the Judges and Magistrates Vetting Board were supra-judicial pronouncements that had the effect of setting aside every decision made by a judge who was removed for impropriety.

Held

1. The issue faced by the High Court was not on whether the High Court had jurisdiction to entertain a constitutional petition and its dispensation, but on whether the High Court had the jurisdiction to set aside a judgment issued by the Court of Appeal as well as to order the Court of Appeal to try an appeal de novo.
2. Jurisdiction was everything as it denoted the authority or power to hear and determine judicial disputes. Civil Appeal No. 149 of 2007 was conclusively determined on April 2, 2009 and that judgment stood save for the review judgment issued on November 20, 2009 that altered the dates of interest. Similarly, the High Court judgment in HCCC No. 367 of 2000 stood and the appellant had not sought any orders to have that judgment impugned. The appellant was asking the Supreme Court to make its determination based on proceedings brought under the Constitution where the decision of the Judges and Magistrates Vetting Board (vetting board) was the basis for its main argument that the judgment by the Court of Appeal in Civil Appeal No. 149 of 2007 was obtained through alleged bias or impropriety on the part of OKubasu JA despite the appellant not having any complaints against the other two Judges of the Court of Appeal who determined Civil Appeal No. 149 of 2007.
3. The High Court could not overturn a final decision of the Court of Appeal. The Constitution could not itself to issue the reliefs sought by the appellant.
4. Article 163(4)(b) of the Constitution did not confer the Supreme Court with the jurisdiction to entertain appeals from the Court of Appeal before the coming into force of the 2010 Constitution, the same principle applied in that the High Court could not and did not have any jurisdiction to reopen cases finalized by the Court of Appeal, which was the apex court at the time.
5. The Constitution could address any injustice with the High Court having jurisdiction under article 165 to hear and determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights. However the High Court could not overturn or order final decisions issued by higher courts than itself to start de novo, especially on appeals that had been finally concluded by the highest court at the time.
6. Superior courts could not grant orders to re-open or review decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves.
7. A courts jurisdiction flowed from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the constitution or other written law. The decisions by the vetting board could not be elevated to supra-judicial pronouncements that would have the effect of setting aside every decision made by a judge who was removed for impropriety.
8. The appellant, having exercised his right of appeal (albeit unsuccessfully) to a higher court, in the instant case, the Court of Appeal, could not proceed to launch an attack upon a judgment of the Court of Appeal, by making an application for redress under article 23 of the Constitution to the High Court, another superior court nonetheless, but one inferior to the court that delivered such judgment. To allow such an action would be subversive to the principle of rule of law.
9. Though the courts found bias to amount to a breach of constitutional rights, the inferior courts were not asked to set aside the judgments made by superior courts, the vetting bard proceedings notwithstanding. The principle of finality in litigation was relevant. There had be an end to litigation and it was intolerable that litigants could be allowed to approach courts to reconsider final orders made in judgments by a superior court in the hierarchy of courts and to have such final judgments re-opened. There was no justifiable fault in the decision of the appellate court affirming the trial courts decision.

Supreme Court upholds the election of William Samoei Ruto as the Fifth President of the Republic of Kenya.

Brief facts

On August 9, 2022 Kenya held the third general election under the Constitution of Kenya, 2010 (Constitution). Transmission of the results of the general election was done via the Kenya Integrated Electoral Management System (KIEMS); a technology used in the biometric voter registration, and, on the election day, for voter identification as well as the transmission of election results from polling stations to the National Tallying Centre.

On August 15, 2022, the chairperson of the Independent Electoral and Boundaries Commission (IEBC) (4^th respondent) declared the 1^st respondent, William Samoei Ruto, the Presidential Candidate for the United Democratic Alliance Party, (1^st respondent) the president elect with 7,176,141 votes (50.49% of presidential votes cast) and the 1^st petitioner, Raila Amollo Odinga as the runners up with 6,942,930 votes (48.85% of presidential votes cast). 

Aggrieved by the results and the process by which the results were obtained and declared, the 1^st petitioners, Raila Odinga and Martha Karua, who were the presidential and deputy presidential candidates respectively of the Azimio La Umoja Coalition of parties filed the instant petition challenging the declared result of that presidential election (the election). Alongside the 1^st petitioners were a bundle of 6 other petitioners that also challenged the result of the presidential election; in total they filed 9 presidential election petitions.

The 1^st, 3^rd and 4^th petitioners in the consolidated petition, challenged the technology used by IEBC during the 2022 General Election. They pleaded 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 urged that IEBC, pursuant to its Elections Operations Plan, committed itself to conducting an audit of the Register of Voters by March 31, 2022. To the contrary, they alleged, it only publicly availed the audit report on its website on August 2, 2022, 7 days to the election.

In response, IEBC 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.

The 1^st petitioners further alleged that the results of the presidential election were staged.  They contended that a person who had access to the Result Transition System (RTS), intercepted, detained or stored Forms 34A temporarily to convert or manipulate them before uploading them on IEBCs public portal. 

To rebut the allegation, IEBC and its chairperson denied staging and unauthorized intrusion of the RTS. In that regard, they urged that every image of Forms 34A was uploaded immediately after the transmitted result form was received as evinced by the time stamp. 

The petitioners also challenged the authority and the decision of the IEBC or its chairperson to postpone the 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. They contended that the IEBC had no jurisdiction to postpone elections in those areas. They further contended that section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward contrary to the Constitution. They contended that 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 1^st and 3^rd petitioners also believed that elections were deliberately postponed in Kakamega and Mombasa counties. It was alleged that those areas were considered to be 1^st petitioners strongholds, and as such, the postponement of elections worked to his disadvantage and handed a benefit to the 1^st respondent.

Those 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 could 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.

The petitioners also contested the formula used by the IEBC or its chairperson to declare that the 1^st respondent had obtained the threshold of 50% + 1 of the votes cast in the presidential election. In particular, they challenged the rounding off. They contended that the rounding off of votes cast in a presidential election as a means of assessing the threshold under article 138(4) of the Constitution killed and birthed voters, which was illegal and unconstitutional. 

Lastly the petitioners challenged the results of the presidential election on account of the opaque nature of the verification exercise at the National Tallying Center. On August 15, 2022 as the public waited for the chairperson of the IEBC to declare the final result, Kenyans found themselves watching a split screen scenario on their television sets. On one part of the screen was the chairperson, readying himself to declare the result of the presidential election; on the other part of the screen were the 5^th to 8^th respondents (the 4 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. The 4 commissioners termed the results opaque due to the manner in which the chairperson had been conducting the verification and tallying exercise. They contend that by rejecting IEBCs 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 was the petitioners argument, therefore, that a dysfunctional Commission could not deliver a credible election.

Issues

1. Which party bore the burden of proof in an election petition?
2. What was the standard of proof in proving:
   1. election irregularities and illegalities;
   2. data specific claims; and
   3. election offences
3. Whether the technology deployed by IEBC met the standards of integrity, verifiability, security, and transparency that guaranteed accurate and verifiable results.
4. Whether IEBC had the capacity to develop the Kenya Integrated Electoral Management System (KIEMS) on its own without procuring it from third parties.
5. Whether the procurement of the KIEMS by IEBC was within the law.
6. Whether IEBC at the time of the elections of August 9, 2022 had visibility and control at all times of its election technology.
7. Whether IEBC failed to carry out an annual systems audit of the election technology to evaluate the confidentiality, integrity and availability of the election technology pursuant to regulations 11 and 12 of the Elections (Technology) Regulations, 2017.
8. Whether there was interference with the uploading and transmission of Forms 34A from the polling station to IEBC public portal.
9. Whether there was a difference between Forms 34A uploaded on IEBCs public portal, the Forms 34A received at the National Tallying Centre, and Forms 34A issued to the agents at the polling stations.
10. Whether counsel were not permitted to swear affidavits on behalf of their clients in contentious matters.
11. What duty did an advocate owe the court?
12. Whether a court of law could examine affidavit evidence that had been withdrawn by the deponent.
13. Whether IEBC had the requisite constitutional and legal authority to postpone gubernatorial, parliamentary and  ward elections.
14. What threshold had to be met for the IEBC to take the drastic step of postponing elections?
15. What did the court consider in determining a claim of voter suppression?
16. 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.
17. Whether there were unexplainable discrepancies between the votes cast for presidential candidates and other elective positions.
18. Whether IEBC carried out the verification, tallying, and declaration of results in accordance with article 138(3)(c) and 138(10) of the Constitution.
19. Whether regulation 87(3) of the Elections (General) Regulations, 2012 was unconstitutional to the extent that it vested the power of verifying and tallying presidential election results, as received at the NTC, solely on the chairperson of the IEBC to the exclusion of other members of the Commission.
20. Whether the petitioners proved to the requisite standard that the chairperson of the Commission excluded the four Commissioners from the tallying and verification process.
21. Whether the results from twenty-seven disputed constituencies were tallied and verified.
22. Whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election.
23. What constituted electoral irregularities and illegalities?
24. Whether there was a special mechanism in place, to allow for special voting for election officials and observers, patients admitted in hospitals, older members of society, members of the defence and security forces on duty and other persons by reason of a special need, as contemplated under regulation 19 of the Elections (General) Regulations 2012.

Relevant provisions of the law

Constitution of Kenya, 2010.

Article 138(3)(c), (4) and (10).

138.     Procedure at presidential election

(3)        In a presidential election

(c)       after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.

(4)        A candidate shall be declared elected as President if the candidate receives

(a)       more than half of all the votes cast in the election; and

(b)       at least twenty-five per cent of the votes cast in each of more than half of the counties.

(10)      Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall

(a)       declare the result of the election; and

(b)       deliver a written notification of the result to the Chief Justice and the incumbent President.

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. Lack of trust in the electoral system led to the introduction of election technology via section 44 of the Elections Act. Section 44 enjoined the Independent Electoral and Boundaries Commission (IEBC) to adopt an integrated electronic electoral system that enabled biometric voter registration, electronic voter identification and electronic transmission of results. However, electronic transmission was limited to a presidential election. IEBC developed technology known as Kenya Integrated Electoral Management System (KIEMS) making Kenyas election process a hybrid one, embracing both technology and manual processes.
2. IEBC was the body constitutionally mandated to conduct elections in Kenya. Elections were considered free and fair when they were held in consonance with the general principles for the electoral system as articulated in article 81(e) of the Constitution as read with section 25 of the Independent Electoral and Boundaries Commission Act (IEBC Act) that was, if they were, conducted by secret ballot, free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner.
3. The outcome of a case depended on the strength, accuracy and reliability of evidence. In an adversarial court system, the courts were blind in the sense that they did not carry out any investigative roles or gather evidence on behalf of the parties before them. They depended on and determined disputes from what parties presented. Cases were won or lost on the evidence placed before the court.
4. A petitioner who sought the nullification of elections for alleged non-conformity with the Constitution or the law or on the basis of irregularities and illegalities, had the duty to proffer cogent and credible evidence to prove those grounds to the satisfaction of the court. Once the court was convinced that the petitioner had discharged that burden, then the evidentiary burden shifted to the respondent (who in most election-related cases was IEBC), to present evidence by way of rebuttal of the assertion.
5. The intermediate standard of proof in election petitions lay in a middle ground between the threshold of proof on a balance of probability in civil cases and beyond reasonable doubt in criminal trials, save for two instances; where allegations of criminal or quasi-criminal nature were made; and where there was data-specific electoral pre-condition and requirement for an outright win in the presidential election, such as those specified in article 138(4) of the Constitution. In those instances, the standard of proof was beyond reasonable doubt. Despite there being different standards of proof in other jurisdictions across the globe, there was no justification to depart from the test applied in the Kenyan jurisdiction. There were therefore only two categories of proof in relation to election-related petitions in Kenya: the application of the criminal standard of proof of beyond reasonable doubt and the intermediate standard of proof.
6. The electoral system was designed to handle voter registration of over 22 million voters with unique biometric details. Further, in all the 46,231 polling stations KIEMS kits were  mapped to  the  specific geographical  area  of the  polling  stations and  to specific presiding officers. It was also designed to be as secure as possible to prevent infiltration. The public portal, on the other hand, was designed to handle numerous visits  to  the website  to  access the  transmitted  Forms 34A  without  causing it  to crash.  Such a system by design could not be expected to be a simple one in the ordinary sense. Its features were not configured for ordinary everyday use by everyone without suitable training. There had been no specific complaint by any voter, agent or member of the public over their inability to use or frustrations in the use of the technology.
7. IEBC had rolled out an elaborate training program aimed at building capacity and competence of its staff members and candidates agents on the KIEMS system. It also conducted voter education and sensitization activities across the country targeting stakeholders including political parties, civil society and Government agencies through print and electronic media, in fulfilment of the provisions of article 88(4)(g) of the Constitution as read with section 40 of the Elections Act.
8. The KIEMS system was initially created as four different systems operated separately during the 2013 General Election, but since 2017 the said system had been fully integrated. There had been a gradual but sustained advancement in election technology from pre-2007 and 2013 elections.
9. Technology no matter how advanced, was bound to fail at one point or another, leading to a bad user experience. Hardware breaks, software bugs and connectivity loss, among many challenges in automation. Imperfections in the process were inevitable. Some imperfections could have far-reaching ramifications, which in turn could lead to nullification of an election while others may not reach that level or degree of significance. The nullification of the Presidential Election of 2017 was partly based on that reality.
10. Whereas KIEMS kits failed in 235 polling stations in Kibwezi West Constituency and parts of Kakamega County, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly filled. The failure of the KIEMS kits in the identified polling stations could not be taken as a yardstick of the performance of KIEMS kits in the whole country. All affected voters who could have complained were not disenfranchised as they were able to exercise their democratic right to vote manually.
11. By dint of section 44(4) of the Elections Act, IEBC was to, in an open and transparent manner, procure and put in place the technology necessary for the conduct of a general election at least one hundred and twenty days before such elections. The two limbs to the provision were the open and transparent procurement of the technology and the timelines within which to put it in place. The IEBC advertised an open international tender for the supply, delivery, installation, testing, commissioning, support and maintenance of the KIEMS, hardware equipment and accessories. At the close of the tender period, it received bids from five firms and upon evaluation, Smartmatic was successful and was awarded the tender thereto. A contract between IEBC and the firm was concluded on November 25, 2021. The award of contract was contested before the Public Procurement Administrative Review Board, the High Court and eventually the Court of Appeal with the ultimate result that the award was upheld. It was not open for any party or even the Supreme Court to revisit that tender in the circumstances.
12. IEBC did not have the capacity to develop such a system and therefore it procured such a system. Although computer hardware, software, and other related services were essential for election operations, an elections body would not have the capacity to avail for itself most of those complex services that underpinned electionsfrom voter registration and election management systems to results transmission devices. Those were procured from private vendors. Once procured, installed and operationalized, the systems could be managed by staff of the election body. IEBC did not abdicate its role in the procurement of the technology used in the last General Election or in the conduct of the presidential election. It complied with section 44 of the Elections Act and with the procurement procedures under regulation 4 (1) of the Elections (Technology) Regulations, 2017.
13. IEBC granted a team comprising of agents of all the petitioners supervised access to the server for interrogation for the entire duration of the exercise. IEBC in compliance with the orders of the court provided its password policy, password matrix, system users and levels of access, workflow chats of the system, architecture, diagram, tallying, transmission and posing of the portals as well as the system architecture. It only declined to provide the owners of system administrations passwords as they considered doing so would expose the names and identities of the system administrator posing a threat to their security. That position was understandable. The petitioners, through their agents, were not handicapped in any way during the scrutiny exercise and they had access to all material relevant to the scrutiny and the petitions before the court. Any other access would not have been of use to the court or the petitioners.
14. IEBC had visibility of the system and its technical members of staff, who conducted the scrutiny had control of the electoral system at all times. The petitioners did not present any evidence that met the requisite standard of proof to show that there was access to the system by unauthorized persons. Similarly, the report of the Registrar of the Supreme Court (Registrars report) did not reveal any security breaches of the Result Transmission System (RTS) by any unauthorized person(s).
15. IEBC engaged the firm of Serianu Limited in July 2022 to conduct the annual audit of its election technology systems. There was public testing of the kits on June 9, 2022, being sixty days before the election and a similar simulation carried out on July 15, 2022. The petitioners made allegations that they had been unable to prove and to which IEBC had been able to respond by demonstrating that it followed the law as regards auditing of the electoral system pursuant to regulations 11 and 12 of the Elections (Technology) Regulations, 2017. The court was not satisfied that the technology deployed by IEBC failed the standard of article 86(a) of the Constitution on integrity, verifiability, security and transparency.
16. From the Registrars report, parties reviewed the transmission of Forms 34A from the KIEMS kit to the online public portal and were satisfied that once the presiding officer took a picture of Form 34A, the KIEMS kits would, at that point, scan the Form into PDF which would then be transmitted to a storage server. At the storage server, the Form was processed by an application to ascertain compliance with security features. Once that was confirmed, Form 34A was then published on the online public portal. But if it lacked the security features, it was dropped and information of the anomaly was duly recorded.
17. Forms 34A as transmitted from the polling stations were handwritten by the presiding officers. The KIEMS kit had an inbuilt scan application that enabled the scanning of forms into PDF before transmission to the receiving server. That categorical finding settled the issue of alleged image conversion. The system in terms of its configuration, design and disposition would not allow the intrusion and interference in the manner as alleged by the petitioners side. The 1^st, 2^nd, 3^rd and 4^th petitioners' illustration of how a document which was handwritten and with signatures, was scanned and uploaded through the KIEMS then uploaded on an external platform where it was converted into another format, amended, then converted back into PDF format to finally be re-uploaded onto IEBCs portal, was not believable. The scrutiny exercise put that postulation beyond argument.
18. Any alteration of the Forms 34A as transmitted would have required the person to have information on the voter turnout. One could not purport to alter the votes of a polling station by increasing the number of votes in favour of one candidate without, first establishing the exact number of voters that turned out to vote. To alter votes in the manner alleged by the petitioners would require the man or machine in the middle to have had agents in all the 11,000 polling stations, where it was alleged that Forms 34A were held in abeyance for manipulation, before being uploaded with finality to IEBCs online public portal within 8 minutes. That was almost a technological impossibility. The claims of access to the RTS to interfere with Forms 34A, and that 11,000 Forms 34A were affected by staging were not proved and remained just but mere allegations.
19. According to the Registrars report, there were no records of file deletion or removals that were discovered. There was no suspicious activity involved. Scrutiny of the original Forms 34A revealed that the forms were exactly the same as those on the public portal and the certified copies presented to the Supreme Court under Section 12 of the Supreme Court Act. There was no evidence of interception; no sign of interference was detected.
20. The allegation that the integrity of the public portal was compromised was disproved by evidence of consistent attributes securing the system 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. The KIEMS kits were configured to transmit the results into the IEBC server, with all the tablets being used for specific polling stations. It was easy, with that configuration to trace where the Forms 34A were transmitted from. Equally, the network was secured with external and internal perimeter firewalls only authorising transmission of the Forms 34A through the network and no other information. The results of the Forms 34A were also encrypted before transmission over a VPN provided by the three mobile network operators. The RTS was configured on a 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 kits. The petitioners failed to produce evidence to the contrary.
21. The KIEMS kits were capable of detecting the legitimacy of the forms as they would take images using the specific markings identifying the Forms 34A and ensuring that only legitimate forms were transmitted. There was integrity of the process by adding a third layer of firewalls that filtered all incoming and outgoing data while restricting any third party or unauthorized access. The allegation that IEBC, its officials and strangers used a tool to tamper with the Forms 34A before converting them to the PDF format that eventually appeared on the public portal was sufficiently explained as an impossibility. The allegation was dismissed. The petitioners had failed to discharge the legal burden of proof so as to shift it to IEBC.
22. There was no credible evidence to support the 1^st petitioners claim that Forms 34A presented to agents differed from those uploaded to the public portal. The Registrars report confirmed the authenticity of the original forms in the sampled polling stations. There were no significant differences between the Forms 34A uploaded on the public portal and the physical Forms 34A delivered to the NTC that would have affected the overall outcome of the presidential election.
23. The affidavits of Celestine Anyango Opiyo and Arnold Ochieng Oginga, while containing sensational information, were not credible as the Registrars report confirmed evidence to the contrary. 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 sworn in the affidavits was not only inadmissible, but was also unacceptable. It had been established that none of the agents on whose behalf the forms were being presented swore any affidavit; that there was nothing to show that they had instructed both Celestine Opiyo and Arnold Oginga to act for them. Yet the two had gone ahead to depone on matters that were not within their knowledge. The two were advocates of the High Court and were on record as representing the 1^st petitioner in the petition.
24. The court could not countenance that type of conduct on the part of counsel who were officers of the court. Affidavits filed in court had to deal only with facts which a deponent can prove of his own knowledge and as a general rule, counsel were not permitted to swear affidavits on behalf of their clients in contentious matters, as was the case in the presidential election petition, because they ran the risk of unknowingly swearing to falsehoods and may also be liable to cross-examination to prove the matters deponed to.
25. Sections 113 and 114 of the Penal Code made swearing falsehoods a criminal offence. It was an offence to present misleading or fabricated evidence in any judicial proceedings. One of the most serious losses an advocate may ever suffer was the loss of trust of judges for a long time. Such conduct amounted to interference with the proper administration of justice. Further, it put counsel in jeopardy of being found in contempt of court.
26. An advocate, consequently, bears an obligation to promote the cause of justice, and the due functioning of the constitutionally-established judicial process ensuring that the judicial system functions efficiently, effectively and in a respectable manner. In that context, advocates bore the ethical duty of telling the truth in court, while desisting from any negative conduct, such as dishonesty or discourtesy. The overriding duty of the advocate before the court was to promote the interests of justice, and of motions established for the delivery and sustenance of the cause of justice.
27. The court dismissed the contents of the affidavit of John Mark Githongo, which could contain forgeries, for not meeting the evidential threshold. It contained no more than 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. His two affidavits amount to double hearsay which was incapable of being proved at each layer.
28. Paragraph 13 of the affidavit of Githongo of August 21, 2022 claimed that the young self-confessed hacker confirmed that his team was also able to manipulate the gubernatorial results in some key counties, as well as those for the presidential election. Governors results were not transmitted electronically, in the same manner as those of presidential candidates. That statement alone should have been sufficient to cast serious doubts on the credibility of that witness. It was improper for Githongo to accept such evidence and to present it to the Supreme Court as the linchpin for the nullification of the results of the presidential election, and even worse, go ahead to swear that those facts were, to his knowledge, true.
29. Although John Githongo withdrew his earlier averments, that did not prevent the court from examining the same. His affidavit together with those of Celestine Anyango, Arnold Oginga and Benson Wesonga were the anchors upon which the 1^st petitioners case was predicated.
30. The original Forms 34A were authenticated by their unique security features, including UV sensitive security features; micro-text with the words Independent Electoral and Boundaries Commission, tapered serialization, anti-copy features and water mark that enhanced the security of the information management environment therefore eliminating and protecting the system against the possibility of interference by any unauthorized third party. The physical and original Forms 34A were the same as those on the online public portal. The Forms 34A were carbonated to ensure that only one form was filled by the presiding officers and acted as a measure to help authenticate the results at the polling stations before transmission.
31. Expert opinion, as a general rule was not binding on the court. It was only an opinion. In reaching its determination, the court was entitled to consider other relevant facts and the evidence as a whole. The forensic reports could not be used as evidence and basis that the Forms 34A were tampered with.
32. The explanation by the IEBC that the presiding officer of Gacharaigu Primary School took the picture of the Form 34A above the QR register which had the name Jose Camargo. The name was not on the Form 34A or any election material was credible. However the two KIEMS kits had the same serial number as alleged but that they had different IP addresses from the two different polling stations, and therefore, had distinct identifiers. Similarity in serial numbers could only be attributed to a manufacturers fault. The reasons for the irregularity were plausible. It had not been established that those minor infractions and errors were of a magnitude that would lead to a different result from that declared by IEBC. There was no difference between Forms 34A uploaded on IEBCs public portal, those received at the NTC, and those issued to the candidates agents at the polling stations.
33. The postponement of the 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 (the postponement) was occasioned by the wrong pictures and details of the candidates on the ballot papers. The postponement did not affect the presidential or other elections which went on as scheduled. The postponement did not go without protestation from some of the candidates and parties.
34. Article 38(3)(b) of the Constitution guaranteed every adult citizen the right, without unreasonable restrictions, to vote by secret ballot in any election. Voting in periodic genuine elections was a well-established right according to international human rights law. The decision to postpone an election and prevent citizens, albeit temporarily, from exercising their regular right to vote was a weighty choice which should be made only in a very limited and exceptional set of circumstances.
35. The circumstances would include major crises such as civil wars, natural or humanitarian disasters, the prevalence of a deadly pandemic and technical delays related to logistical issues. There could also be certain inevitable constraints such as fire incidents, bad weather, insecurity or violence.
36. Election postponement could have far-reaching ramifications in a countrys democratic process and economic activities. It disrupted voters plans, schedules and activities, which in turn affected the voter and the candidates financially, emotionally and psychologically. It could lead to electoral apathy as citizens tended to lose interest in voting when they felt that it may be a waste of their time. That would then impact on the turnout among registered voters. There was also economic loss associated with postponement of election, in addition to loss of reputation of a nation in the international community. The citizens, political parties and candidates were the main victims of election postponement. The latter two categories invested heavily in elections by campaigning, deployment of agents in the polling stations and generally spent huge sums of money to monitor the elections.
37. Many voters travelled long distances to ensure that they were present at their polling units to participate in the voting process. Many others closed their businesses in order to make the journeys. The postponement of the election would also have an impact on foreign observers, media outlets, security agencies, employers and employees, as well as students. Although in the instant case it was IEBC that postponed the election, it would have been bound to incur extra costs to deploy personnel and materials for the election but the printers offered to print fresh ballot papers at no extra expense. In addition, its credibility would be damaged by the postponement.
38. For this claim that the postponement led to voter suppression to succeed, the petitioners had to demonstrate, first, that IEBC had no authority under the Constitution or in law to postpone the elections under any circumstance and secondly, that the postponement was deliberately calculated to suppress voter turnout so as to affect the result by reducing the 1^st petitioners overall votes in order to benefit the 1^st respondent.
39. IEBC under the Constitution had a wide mandate in so far as the conduct and supervision of elections to any elective body or office was concerned. In the discharge of its general functions and exercise of its powers pursuant to articles 88 and 252 of the Constitution, IEBC could perform any functions and exercise any powers prescribed by legislation, in addition to those conferred by the Constitution itself. On the basis of section 55B(1) of the Elections Act that gave the IEBC the power to postpone elections, IEBC had the requisite constitutional and legal authority to postpone elections in the counties, constituencies and wards in question.
40. Voter suppression was generally recognized as a political strategy which took 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. The ultimate aim of that scheme was to influence the outcome of an election in favour of a preferred candidate. Suppression of votes could range from the seemingly harmless requirements, like strict voter identification rules. If, for instance a registered voter could not be identified by the KIEMS kit it could amount to suppression if the election officials were to turn away the voter, instead of resorting to the voters manual register and if that was on a scale that was likely to lead to systemic disenfranchisement.
41. Though the very purpose of voter registration was to ensure that every adult person who qualified to vote in an election was registered as a voter, voter registration could be used as a tool for suppressing votes of some communities by not availing registration facilities in time or at all to those communities.
42. Under article 88(4) of the Constitution, IEBC was not only responsible for the continuous registration of voters but also for the regular revision of the voters roll. This latter role was critical in cleaning up the voters roll by removing from the roll voters who had died or become ineligible to vote for other reasons or updating it with newly registered voters or those who had transferred their votes to other stations. Yet that process could be turned into a tool of mass disenfranchisement, purging eligible voters from rolls for illegitimate reasons or by design retaining deceased voters. A single purge could stop many people from voting. Often, voters would only learn they have been erroneously purged when they show up at the polls on election day and when it was too late to correct the error, considering that not every voter utilized the window before election to verify their details in the roll.  The very essence of voter suppression, to disenfranchise voters, therefore went against the letter and spirit of article 38 of the Constitution which guaranteed every citizen the right to make political choices based on universal suffrage.
43. The Constitution enjoined IEBC in article 86 of the Constitution to ensure that, whatever voting method was used in an election, the system had to be simple, accurate, verifiable, secure, accountable and transparent; that the votes cast were counted, tabulated and the results announced promptly. Voting had to be as easy and accessible as possible and Kenyas nascent democracy would work best when all eligible voters could participate and have their voices heard in the ballot.
44. It was the petitioners' burden to demonstrate that as a result of the postponement of elections a particular number of voters or a specific group of people were unable to cast their ballots. That required presentation of empirical evidence. The petitioners had not only failed to present any such evidence, but have also not shown that the postponement was actuated by malice or bad faith or that it was influenced by irrelevant factors and considerations.
45. However, from the explanation tendered by IEBC, the postponement was occasioned by a genuine mistake, attributed to the printers, who were based abroad, in Athens, Greece. That fact and the discovery having been made only on the eve of the election, placed the situation out of hand. Though the mix-up could have been avoided had the members and staff of IEBC been more diligent when they went to inspect the templates in Athens. In that delegation too, were representatives of political parties and other groups. A mistake of that nature could have been avoided if IEBC exercised due diligence by counter checking and verifying the correctness of every detail in all the templates before approval of the printing. That was a basic standard operating procedure in printing especially of such a magnitude.
46. However, despite that infraction or lack of due diligence on the part of IEBC, there was absence of any empirical data, to persuade the court that the postponement of elections was meant to suppress voter turnout. The data presented by the petitioners which was countered by IEBC with data from neighbouring counties could not form a basis upon which the court could conclude, as a matter of fact or evidence, that the postponement affected voter turnout as a consequence of which the 1^st 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 could be attributed. The general election recorded one of the lowest turnouts 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, lay elsewhere but certainly not a calculated suppression.
47. There was no nexus between the postponement of elections and voter turnout in the affected units. Voter turnout in the neighbouring counties was no different from the two counties in question. For instance, the voter turnout for Kakamega, Vihiga and Bungoma Counties was 60.29%, 60.13% and 63.51% respectively. Similarly, the voter turnout in Mombasa County compared to Kilifi County was shown to be 43.76% against 49.03%. The claim of voter suppression was a red herring; it had nothing to do with the question under review, and was rejected. There was no proof that the postponement resulted in voter suppression to the detriment of the 1^st petitioner.
48. Ballot stuffing, which included illegal addition of extra ballots, was a type of electoral fraud aimed at swinging the results of an election towards a particular direction. Not a single document had been presented by the 1^st or 3^rd petitioner to prove systematic ballot stuffing. A figure of 33,208 votes relied on in this claim was based on unproven hypothesis, that since the number of votes cast for President was higher than those for the other positions then, without more, it had to follow that there was fraud committed in the form of ballot stuffing.
49. Under the complementary mechanism, the presiding officers could only use the printed register in case the KIEMS kits completely failed. There was no requirement for recourse to the printed register, whether for purposes of voter identification or for crossing out the name after identification.
50. The mere crossing out of the name from the voters register did not in itself address the issue of votes cast as the voter turnout was sufficient to determine the number of votes cast for whatever position. From the functionality of the KIEMS kit, it was possible to tell how many people were identified at any given polling station.
51. Fraud being a serious criminal offence its proof required a higher standard; beyond reasonable doubt. Under Section 5(n) of the Election Offences Act, it was an offence for a person to vote more than once in any election. There were categories of voters who only voted for the President and no other candidate in an election. Those were prisoners and Kenyans in the diaspora. There were also an insignificant number of stray votes, whose combined effect did not meet the threshold in section 83 of the Elections Act to demonstrate that there was systematic stuffing of ballots in favour of the 1^st respondent so as to justify nullification of the election.
52. A general election in Kenya comprised six different and separate elections held concurrently on the same day with voting being by secret ballot. It was impossible to predetermine the voter turnout or voters candidate preferences in each election. None of the parties had flagged anything so significant that would have affected the outcome of the presidential election vis vis the other five elections held on that day.
53. The starting point of constitutional interpretation was the text itself. As long as the text was clear and unambiguous, courts of law had to remain faithful to the natural and literal meaning of the words used in the Constitution. Care should always be taken to avoid textual absurdity. The Constitution was a living document that was always speaking.
54. The broad powers vested in the IEBC and typified in section 11A(a) of IEBC Act as ought to be understood as being vested in the collective of the chairperson and members of the Commission. The commission had to meet, act and make decisions collectively in discharging those mandates. It would be wrong to interpret the Constitution and statutory scheme regulating the operations of IEBC, as having vested sole authority on the chairperson, to the exclusion of the commissioners. Each of the members of the commission was a constitutional office holder in their own right. It was not constitutionally sound to expect that the chairperson of the Commission could override, veto or ignore the other commissioners when discharging mandates vested in the Commission. In case a responsibility was exclusively vested in the chairperson, article 138(10) of the Constitution expressly and unambiguously provided so.
55. The responsibility of tallying and verifying the results of a presidential election at the NTC, vested in the Commission as a collective entity (article 138(3)(c) of the Constitution); while that of declaring the result, vests exclusively in the chairperson, (article 138(10)). The collective of the Commission had to be viewed in the context of its extant roles during the preparation for, and actual conduct of a general election. The Commission may at one time, be the chairperson and the requisite number of other commissioners. At another time, it may be the foregoing, and staff of the Commission. Yet at other times, the Commission may comprise of the chairperson, the requisite number of other commissioners, staff of the Commission and agents of the Commission, including but not limited to, presiding officers, and returning officers.
56. The chairperson, the members of the Commission and the secretariat (employees) were envisaged to undertake the mandate to tally and verify election results. Pursuant to the terms of section 11A(b) of the IEBC Act, the Commission had a full-fledged secretariat headed by the Chief Executive Officer which was responsible for performing the day-to-day administrative functions of the Commission and implement the policies and strategies formulated by the Commission. That acknowledged the reality that the commissioners on their own could not undertake the huge enterprise of elections administration and management and other mandates vested in the Commission.
57. While the staff of the Commission, undertook the day-to-day administrative functions, they remained under the oversight of the Commission (chairperson and other commissioners). Given that the oversight mandate with respect to the tallying and verification was vested in the Commission, the chairperson could not exclude any member or members of the Commission from the execution of those twin constitutional and statutory mandates as they were vested in the Commission as a collective.
58. Nowhere in the Constitution, was the chairperson of IEBC granted special or extraordinary powers with regards to the tallying or verification of results to be exercised by him or her alone without regard to the rest of the commissioners. Nor did the law give the chairperson of IEBC a veto over the rest of the commissioners. IEBC chairperson's status in relation to the other commissioners was as a first among equals, a primus inter pares.
59. The argument that the IEBC had an executive chairperson went against the constitutional scheme that sought to build a strong collegiate institution. Consequently, to the extent that regulation 87(3) of the Elections (General) Regulations, 2012 purported to vest the power of verifying and tallying presidential election results, as received at the NTC, solely on the chairperson to the exclusion of other members of the Commission, the same was contrary to and inconsistent with the provisions of the Constitution.
60. All the four commissioners were involved in activities relating to the processing of results. In particular, they did not controvert the evidence that they announced results from several Constituencies upon the conclusion of the tallying and verification of the results. The four commissioners 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 the NTC. An example was Justus Nyangaya, who on one occasion stood on the podium to announce to the public, an adjustment that had been occasioned by errors of tabulation.
61. Apart from the eleventh-hour denunciation of the verification and tallying process by the four commissioners, and their averments regarding the conduct of the chairperson, the four commissioners did not place before the Supreme 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 did not explain why they had 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. There was a serious malaise in the governance of an institution entrusted with one of the monumental tasks of midwifing our democracy.
62. The Supreme Court could not nullify an election on the basis of a last-minute boardroom rupture (the details of which remained 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 electoral laws, the Supreme Court could not upset an election in which the people had participated without hindrance, as they made 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 IEBC. It would set a dangerous precedent on the basis of which, the fate of a presidential election, would precariously depend on a majority vote of IEBC Commissioners. The dysfunction at the Commission impugned the state of its corporate governance but did not affect the conduct of the election itself.
63. The results from the twenty contested constituencies were tallied and verified. The only process that was not undertaken was the announcement of the results for those constituencies. It was not disputed that the results from those constituencies were included in the final tally declared by the chairperson.
64. The case made by the petitioners contesting the whether the declared President-elect attained 50%+1 of all the votes cast concerned a data-specific threshold enunciated under article 138(4) of the Constitution without the attainment of which, there could be no declaration.
65. Votes cast for the purpose of ascertaining the constitutional threshold under article 138(4) of  the Constitution, 50% +1,  referred only to valid votes cast, and did not include ballot papers or votes, cast but were later rejected for non-compliance with the terms of the governing law and regulations. Rejected votes could not 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.
66. In the case of data-specific electoral requirements the party bearing the legal burden of proof had to discharge it beyond any reasonable doubt. The assertion by the petitioners that the percentage of voter turnout was predicated on the uncorrected percentage given by the chairperson of IEBC, was negated by the evidence adduced to prove the correction. The petitioners based their 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.
67. 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.
68. The formula predicated on the number of voters identified through the KIEMS kits progressively and used by IEBC and its chairperson to generate a percentage of 64.76% was correct.
69. The chairperson of IEBC applied the formula in article 138(4) of the Constitution which was:

Given the numbers that were presented to us by IEBC and its chairperson, that would translate to:

70. 7,106, 569 was less than 7,176,141 which represented the number of votes received by the IEBC. The declared President-elect attained 50%+1 of all the valid votes cast in accordance with article 138(4) of the Constitution.

71. For the petitioners to succeed and overturn the results declared by the chairperson of IEBC, it was their burden to satisfy the court, first, that there were irregularities and illegalities; and secondly that the proven irregularities and illegalities were of such overwhelming nature that it was likely to affect the actual result, or the integrity of the presidential election.

72. The term illegalities referred to breaches of the substance of specific law and irregularities as the violation of specific regulations and administrative arrangements.

73. The irregularity on the parallel use of Forms 34A had not been proved and failed. There were instances of failure of the KIEMS kits in certain polling stations. In those instances, the regulations required voting time to be extended to compensate the lost time. The petitioners had not attached any material evidence or at all in support of their claims, which in any case were rebutted by IEBCs explanation that there were mechanisms in place to deal with the failed kits. Where technology failed, IEBC was empowered to employ complementary mechanism. IEBCs assertion that it did so was not controverted. As for time lost, IEBCs returning officers presented uncontroverted evidence to the effect that time lost was recovered and compensated by proportionate time extensions.

74. The claims of interference in the supply and delivery of ballot papers, register of voters, statutory election result declaration forms were merely, general statements not backed by cogent and credible evidence.

75. Though certain agents of Azimio La Umoja One Kenya Coalition Party swore affidavits stating specific stations and incidences of harassment, no further evidence such as a report to the police and the exact nature and manner of harassment were disclosed.

76. The petitioners did not show with specificity which election officials out of the 500,000 were not allowed to vote and in what circumstances. Likewise, no specifics of patients in hospitals, older members of society, members of the defence and security forces on duty, who did not vote on account of their situation were supplied. That ground had not met the requisite standard of proof and failed.

77. No mechanism had been put in place to allow for special voting as contemplated under regulation 90 of the Elections (General) Regulations 2012. IEBC did not indicate whether it had published notices on the manner and procedure of the conduct of special voting as required by the Regulations. There was specific and a deserving reason to make provision for special voting by the categories of people named in the regulations who by reason of any special need, including disability, were unable to access a polling station. There was specific and a deserving reason to make provision for special voting by the categories of people named in regulation 90, who by reason of any special need, including disability, were unable to access a polling station. IEBC was expected to actualize the intentions expressed in regulation 90.

78. Once an election offence had been alleged, the evidence in support thereof had to be specific, satisfactory, definitive, cogent and certain. It was only when the election court was satisfied that the burden and standard of proof had been satisfied that it could proceed under the above provision. General allegations did not meet the threshold to warrant the invocation section 87 of the Elections Act. By the same token, there was no evidence of violation or breach of any electoral law or regulations by the chairperson in the management of the August 9, 2022 presidential election.

79. The Supreme Court could only make the following orders when determining the validity of a presidential election petition under article 140 Constitution:

a. in the event the court determined that the election of the President-elect was invalid, it had to make an order nullifying the election. Consequently, it had also to make an order directing IEBC to hold a fresh election within sixty days after the determination.

b. Should the court determine that the election of the president-elect was valid, it was to issue a declaration to that effect. The court would then as a matter of course, make an order dismissing the petition, with or without costs as the case may be.

c. The court could however make recommendations or observations, or structural interdicts besides giving advisory opinion under article 163(6) of the Constitution.

80. There was institutional dysfunction undermining the optimal functioning of IEBC. There were legal, policy and institutional reforms that were urgently required to address the glaring shortcomings within IEBC. The court made the following recommendations on the IEBC:

1. On corporate governance issues
   1. Parliament should consider enhancing the statutory and regulatory framework on the separate policy and administrative remit of IEBC.
   2. IEBC ought to effect formal internal guidelines that clearly delineate the policy, strategy and oversight responsibility of the chairperson and the commissioners; and develop institutionalized guidelines on how to manage the separation of administrative and policy domains.
   3. The roles of the chairperson, commissioners, and the chief executive officer, other staff and third parties should be clearly set out in both the legislative and administrative edicts as stipulated above.
2. On election technology.
   1. To avoid suspicion from stakeholders, unless where and when it was absolutely necessary, access to the servers supporting the transmission and storage of Forms 34A, 34B and 34C should be restricted to IEBC staff during the election period.
   2. IEBC should ensure that the servers supporting the elections and those serving their internal administrative work were distinct and separate. That would then allow the court, should the need arise, to carry out forensic imaging of the same without compromising and/or infringing any third-party agreements.
3. On statutory forms.
   1. IEBC may consider simplifying and restructuring the Form 34A and include a column that accounts for stray ballots. In addition, it may consider having only one section for total valid votes. The independent body may also find it prudent to thoroughly train its returning officers as to what constituted valid votes per the Supreme Courts decision.
   2. IEBC ought to put in place specific mechanisms to allow for special voting as contemplated under regulation 90 of the Elections (General) Regulations 2012.
4. On Constitutional reforms, the court noted the need to extend the constitutional timeline, within which to hear and determine a presidential election petition. The court underscored the need to extend the fourteen-day limit, for purposes of efficient case management by the court, and also, to afford the parties sufficient time to ventilate their cases.
5. On conduct of the proceedings before the Supreme Court, the court was constrained to advert to some of the guidelines of conduct that the court set out at the commencement of the hearing. Ground rule 3 required parties to conduct themselves with decorum to preserve the dignity of the court and the proceedings while bearing in mind the provisions of section 28 of the Supreme Court Act. In that regard, discussing the merits of the case by the parties outside the court was not permitted. Unfortunately, the courts caution went unheeded. Some counsel and parties had used inappropriate and insulting language against the court even before the issuance of the detailed judgment. It ought to be appreciated by all, that given the adversarial nature of Kenya's legal system, a determination of any matter by a court of law could never be in favour of both sides of the contending parties. While a party or its counsel could understandably be aggrieved by a decision of the court, it did not help or take away such grief by resorting to insults or vitriolic attacks on courts.
6. While freedom of speech was one of the fundamental principles upon which every democratic society was built, the exercise of those freedoms carried with it duties and responsibilities. Within the same norms which proclaimed those freedoms, were also restrictions on the extent of their enjoyment. The court shall remain faithful to the oath of office and shall defend the Constitution with a view to upholding the dignity and the respect for the Judiciary and the judicial system of Kenya. The court shall dispense justice without any fear. The Supreme Court did so to protect the institution not only for the present but also for the future: judges served their term and leave but the institution of the judiciary was there to serve today and for posterity.

Nature of the exclusive original jurisdiction of the Supreme Court to determine disputes relating to the election of the President

Brief facts

The applicants filed a petition at the Supreme Court on August 8, 2022, seeking among others; a declaration that the 2^nd respondent was unfit and unsuitable to hold office of Deputy President; and a declaration that the nomination of the 2^nd respondent as a running mate by the 1^st respondent was invalid, null and void ab initio. The applicants also filed the instant application and sought an order of conservatory injunction to restrain the 1^st and 2^nd respondents from being sworn into offices of President and Deputy President respectively, in the event they got elected during the general elections then scheduled for August 9, 2022. 

The 1^st to 5^th respondents filed notices of preliminary objection challenging the jurisdiction of the court to entertain the instant appeal and motion. They argued that the court was only clothed with exclusive original jurisdiction pursuant to article 140 of the Constitution of Kenya, 2010 (Constitution) and that the petition failed the test of justiciability and ripeness. The applicants submitted that the court was vested with exclusive original jurisdiction under article 163(3)(a) of the Constitution. 

Issues

What was the nature of the exclusive original jurisdiction to determine disputes relating to presidential elections? 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 140 - Questions as to validity of presidential election

(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.

Article 163 - Supreme Court

(3) The Supreme Court shall have

(a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140; and

Held

1. The Constitution conferred upon the Supreme Court, exclusive original jurisdiction to determine disputes relating to the election of the President, limited only to the circumstances contemplated under article 140(1) of the Constitution. It was not a blanket jurisdiction that empowered the Supreme Court, to extend its judicial authority over any and all interpretational questions, touching upon the election of the President. Article 163(3) of the Constitution did not oust the High Courts original jurisdiction to interpret the Constitution under article 165(3)(d). The Supreme Courts exclusive and original jurisdiction to determine the validity of a presidential election, only kicked in after the declaration of results, following a petition challenging the election. 
2. The Supreme Court could not determine the validity or otherwise of a presidential election, before the same was held and the results thereof declared. It was one thing for the court to pronounce itself on a constitutional or legal question, but it was another thing to determine the validity of an election. In other words, the Supreme Court could not anticipate the validity of a presidential election, within the meaning of article 140(1) of the Constitution. 
3. The petition and application before the court were filed on August 8, 2022, a day before the general elections and seven days before the declaration of the results of the presidential election. Therefore, the applicants were inviting the court to assume jurisdiction outside the confines of article 163(3) as read with article 140(1) of the Constitution. They were inviting the court to unconstitutionally expand its jurisdiction. To wait until a day to the general elections, before seeking the orders of such magnitude, cast the applicants in a cynical scheme of abuse of the processes of the court. The court lacked jurisdiction to hear and determine the petition and application. 

Supreme Court upholds the election of William Samoei Ruto as the Fifth President of the Republic of Kenya.

Brief facts

On August 9, 2022 Kenya held the third general election under the Constitution of Kenya, 2010 (Constitution). Transmission of the results of the general election was done via the Kenya Integrated Electoral Management System (KIEMS); a technology used in the biometric voter registration, and, on the election day, for voter identification as well as the transmission of election results from polling stations to the National Tallying Centre.

On August 15, 2017, the chairperson of the Independent Electoral and Boundaries Commission (IEBC) (4th respondent) declared the 1st respondent, William Samoei Ruto, the Presidential Candidate for the United Democratic Alliance Party, (1^st respondent) the President-elect with 7,176,141 votes (50.49% of presidential votes cast) and the 1st petitioner, Raila Amollo Odinga as the runners up with 6,942,930 votes (48.85% of presidential votes cast).

Aggrieved by the results and the process by which the results were obtained and declared, the 1st petitioners, Raila Odinga and Martha Karua, who were the presidential and deputy presidential candidates respectively of the Azimio La Umoja Coalition of parties filed the instant petition challenging the declared result of that presidential election (the election). Alongside the 1st petitioners were a bundle of 6 other petitioners that also challenged the result of the presidential election; in total they filed 9 presidential election petitions.

The 1^st, 3^rd and 4^th petitioners in the consolidated Petition, challenged the technology used by IEBC during the 2022 General Election. They pleaded that the manner in which technology was deployed and utilized fell short of the prescribed constitutional and statutory standards. In response, IEBC 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.

The 1^st petitioners further alleged that the results of the presidential election were staged.  They claimed that a person who had access to the Result Transition System (RTS), intercepted, detained or stored Forms 34A temporarily to convert or manipulate them before uploading them on IEBCs public portal. IEBC through its chairperson denied staging an unauthorized intrusion of the RTS.

The petitioners also challenged the authority and the decision of the IEBC or its chairperson to postpone the 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. They contended that the IEBC had no jurisdiction to postpone elections in those areas. They further contended that section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward contrary to the Constitution.

Those assertions were denied by IEBC and its chairperson. However, they 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 could 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.

The petitioners also contested the formula used by the IEBC or its chairperson to declare that the 1st respondent had obtained the threshold of 50% + 1 of the votes cast in the presidential election. In particular, they challenged the rounding off of votes cast.

Lastly the petitioners challenged the results of the presidential election on account of the opaque nature of the verification exercise at the National Tallying Center. On August 15, 2022, 4 commissioners of the IEBC held a press conference and termed the results opaque due to the manner in which the chairperson had been conducting the verification and tallying exercise, calling 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 was the petitioners argument, therefore, that a dysfunctional Commission could not deliver a credible election.

Issues

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 IEBC acted ultra vires their powers in postponing gubernatorial, parliamentary and ward elections in select counties during a general election due to some unforeseen hindrances.
5. Whether 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 by the IEBC resulted in voter suppression to the detriment of the petitioners.
6. Whether the role of verifying and tallying of votes as received from polling stations countrywide could be undertaken by the chairperson of the IEBC to the exclusion of other IEBC Commissioners.
7. Whether regulation 87(3) of the Elections (General) Regulations was unconstitutional, to the extent that it purported to vest the power of verification and tallying in the chairperson of IEBC.
8. Whether the discrepancies between the total number of votes cast for presidential candidates vis--vis the total number of votes cast for other elective positions by itself was an indicator of fraud.
9. Which party bore the burden of proof in election petitions?
10. 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.
11. Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with article 138(4) of the Constitution.
12. Whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election.

Relevant provisions of the law

Constitution of Kenya, 2010.

Article 138(3)(c), (4) and (10).

138.    Procedure at presidential election

(3)       In a presidential election

(c)       after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.

(4)       A candidate shall be declared elected as President if the candidate receives

(a)      more than half of all the votes cast in the election; and

(b)      at least twenty-five per cent of the votes cast in each of more than half of the counties.

(10)     Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall

(a)      declare the result of the election; and

(b)      deliver a written notification of the result to the Chief Justice and the incumbent President.

Elections Act, No. 24 of 2011

Section 55B

55B.    Postponement of elections by the Commission

(1)       The Commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county or ward for such period as it may consider necessary where

(a)      there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date;

(b)      it is impossible to conduct the elections as a result of a natural disaster or other emergencies,

(c)       that there has been occurrence of an electoral malpractice of such a nature and gravity as to make it impossible for an election to proceed.

(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. 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 Kenyas election process hybrid as it employed both technology and manual processes.
2. The technology deployed by IEBC did not fail the standard of article 86(a) of the Constitution on integrity, verifiability, security and transparency for the following reasons:
   1. whereas it was 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. That happened successfully in Kibwezi West Constituency and parts of Kakamega County.
   2. While the Audit Report was released to the public seven days before the August 9, 2022 election, the register of voters was used at the election without any apparent anomalies.
   3. 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.
   4. The Scrutiny Report prepared by the Registrar of the Supreme Court (the Report) (the Registrar) did not reveal any security breaches of the IEBCs RTS.
   5. IEBC successfully deployed a Biometric Voter Register (BVR) system which captured unique features of a voters facial image, fingerprints and civil data, to register and update voter details across the country and in the diaspora. Those features were unique to each voter.
   6. 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 the inconsistencies and inaccuracies identified during the Audit were successfully addressed.
3. No credible evidence was presented to prove that anyone accessed the Result Transmission System (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 not proved.
4. 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 Forms 34A. The allegation was dismissed.
5. The transmission logs produced by the petitioners were of no probative value after the ICT scrutiny. The Registrar of the Supreme Courts Report showed 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 the Supreme Court under section 12 of the Supreme Court Act, 2011.
6. The allegation that the integrity of the Public Portal was compromised 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.
7. 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. The petitioners failed to produce credible evidence to the contrary.
8. 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. There was no evidence of a man in the middle server configured to the IEBCs 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.
9. There were no significant differences captured between the Forms 34A uploaded on the public portal and the physical Forms 34A delivered to Bomas (National Tallying Center) that would have affected the overall outcome of the presidential election.
10. 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 confirmed the authenticity of the original forms in the sampled polling stations.
11. The affidavit evidence presented by the petitioners, while containing sensational information, was not credible as the Registrars 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.
12. The purported affidavit evidence was not only inadmissible, but were also unacceptable. It had been established that none of the agents on whose behalf the forms were being presented swore any affidavit; that there was nothing to show that they had instructed both Celestine Opiyo and Arnold Oginga (counsel for the petitioners) to act for them. Yet the two had gone ahead to depone on matters that were not within their knowledge. The Court could not countenance such conduct on the part of counsel who were officers of the court.  
13. Affidavits filed in court had to deal only with facts which a deponent could prove of his own knowledge. As a general rule, counsel were not permitted to swear affidavits on behalf of their clients in contentious matters because they ran the risk of unknowingly swearing to falsehoods and could also be liable to cross-examination to prove the matters deponed. Sections 113 and 114 of Penal Code provided that swearing to falsehoods was a criminal offence, and it was an offence to present misleading or fabricated evidence in any judicial proceedings. One of the most serious losses an advocate could ever suffer was the loss of trust of judges for a long time. Such conduct amounted to interference with the proper administration of justice.
14. The contents of the affidavit of John Mark Githongo, which was alleged to contain forgeries, were 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. His two affidavits amounted to double hearsay, and incapable of being proved at each layer. In addition, no probative value was found on the allegation that Jose Carmago had accessed the RTS and interfered with the result.
15. The KIEMS kit relating to Psongoywo Primary School which bore the same serial number with another was admitted by IEBC as an inadvertent manufacturers error. The two kits had other identifying features that were markedly different including the time stamps and polling code. Nothing turned on that anomaly. There was no 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.
16. IEBC postponed elections for various seats during the general elections of August 9, 2022 due to a mix-up of ballot papers. Section 55B of the Elections Act, 2011, provided for circumstances when elections could be postponed in a particular electoral unit including in cases of emergency. The 3^rd respondent had the requisite power to postpone elections in the constituencies, counties and wards in question.
17. Voter suppression was recognized as a political strategy which took many forms but whose practical effect was ultimately to reduce voting by deliberately discouraging or preventing targeted groups of people from exercising their right to vote and thereby influencing the outcome of an election. It was against the letter and spirit of article 38 which guaranteed every citizen the right to make political choices based on universal suffrage.
18. It had 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. The postponement was occasioned by a genuine mistake, which 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.
19. There was no basis for the court to conclude that the postponement of the elections affected voter turnout as a consequence of which the 1^st petitioner, alone, as a presidential candidate suffered a disadvantage. The nature of the ballot being an individual decision and secret, there could be other variables to which the turnout in the named units could be attributed. The 2022 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 lay elsewhere but certainly not a calculated suppression. There was no nexus between the postponement of elections and voter turnout in the affected units, the claim was a red herring. There was no proof that the postponement resulted in voter suppression to the detriment of the 1^st petitioner.
20. A person who asserted a fact had to prove it. The burden was cast upon the 1^st petitioner to demonstrate that there were instances of ballot stuffing of such a magnitude as to justify the nullification of the presidential election.Ballot stuffing, which was the illegal addition of extra ballots, was a type of electoral fraud aimed at swinging the results of an election towards a particular direction. Not a single document had been presented by the 1^st petitioner to prove systematic ballot stuffing. A figure of 33,208 votes relied on in that claim was based on unproven hypothesis that since the number of votes cast for President was higher than those for the other positions then, without more, it had to follow that there was fraud.
21. Fraud was a serious criminal offence and had to be proved beyond reasonable doubt. Under section 5(n) of the Election Offences Act, it was an offence for a person to vote more than once in any election. IEBC had proffered a plausible explanation for the vote differential. There were categories of voters who only voted for the President, such as prisoners and Kenyans in the diaspora. There were an insignificant number of stray votes, whose combined effect could not justify nullification of the election.
22. A general election in Kenya comprised of 6 different and separate elections held concurrently on the same day. Such elections were held by secret ballot and one could not predetermine the voter turnout or how voters would vote in each election. None of the parties had flagged anything so significant that it would have affected the outcome of the presidential election vis vis the other five elections held on that day. There were no unexplained discrepancies between the votes cast for presidential candidates and other elective positions.
23. 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, vested not in the chairperson of IEBC, but in the Commission itself. The latter carried out the 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.
24. The chairperson of the IEBC could not 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. Under Article 138(10) of the Constitution, although the power to declare the result of a presidential election after verification and tallying, was vested in the chairperson, he did so only as a delegate of the Commission. To the extent that regulation 87(3) of the Elections (General) Regulations purported 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 was contrary to and inconsistent with the provisions of the Constitution.
25. Apart from their eleventh-hour denunciation of the verification and tallying process, and their averments regarding the conduct of the chairperson, the four Commissioners had not placed before the 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. They had not explained why they participated in a verification process when they knew that it was opaque up until the last minute. The 4 Commissioners acknowledged that the entire election had been managed efficiently and credibly. The chairperson did not make matters any better by maintaining a stoic silence even as things appeared to be falling apart. There was a serious malaise in the governance of an institution entrusted with one of the monumental tasks of midwifing our democracy. An institution that needed far-reaching reforms.
26. To nullify an election on the basis of a last-minute boardroom rapture between the chairperson of the Commission and some of its members in the absence of any evidence of violation of the Constitution and electoral laws; to upset an election in which the people had participated without hindrance, as they made their political choices pursuant to article 38 of the Constitution would be tantamount to subjecting the sovereign will of the Kenyan people to the quorum antics of the IEBC. The court was incapable of such action. The dysfunctionality at the IEBC impugned the state of its corporate governance but did not affect the conduct of the election itself. Notwithstanding the divisions apparent between the chairperson and the 4 Commissioners, IEBC carried out the verification, tallying and declaration of results in accordance with article 138 (3)(c) and (10) of the Constitution.
27. The case made by the 6^th petitioners concerned a data-specific threshold enunciated under article 138(4) of the Constitution without the attainment of which, there could be no declaration. That was the ultimate yardstick for determining the winner in a presidential contest. Rejected votes could not 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.
28. 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 had to discharge it beyond any reasonable doubt. The assertion by the 6^th petitioner that the percentage voter turnout was predicated on the uncorrected percentage given by the chairperson of IEBC, was negated by evidence adduced to prove the correction. The 6^th 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. The rounding off done by IEBC and its chairperson was correct.
29. 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. 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.
30. The chairperson of IEBC applied the formula in article 138(4) of the Constitution which was:

Given the numbers that were presented to us by IEBC and its chairperson, that would     translate to:

31. 7,106, 569 was less than 7,176,141 which represented the number of votes received by the 1^st respondent. On the basis of the above formula and from the numbers provided by IEBC and its chairperson, and the declaration by the chairperson of the President-elect on August 15, 2022, the declared President-elect attained 50%+1 of all the valid votes cast in accordance with article 138(4) of the Constitution.

32. Although the petitioners had provided numerous averments pointing to possible irregularities and illegalities, the pointed illegalities and irregularities were not of such magnitude as to affect the final result of the presidential election.

33. In exercising its jurisdiction pursuant to Article 140 of the Constitution, the Court sat as an election court, with the mandate to determine the validity or otherwise of the election of the President-elect. The jurisdiction of the Court was quite circumscribed in terms of the orders or reliefs it could grant following the hearing and determination of an Election Petition under Article 140.

34. The Supreme Court could only make the following orders when determining the validity of a presidential election petition under article 140 of the Constitution:

 a.   in the event the court determined that the election of the President- elect was invalid, it had to make an order nullifying the election. Consequently, it had also to make an order directing IEBC to hold a   fresh election within sixty days after the determination.
 b.  Should the court determine that the election of the President-elect was valid, it was to issue a declaration to that effect. The court  would then as a matter of course, make an order dismissing the  petition, with or without costs as the case may be.

35. The court could not assume jurisdiction that was beyond the purview of articles 163(3) and 140 of the Constitution. However, nothing stopped the court from issuing orders or reliefs by way of recommendations. 

36. Since 2013, the Supreme Court had issued many recommendations arising from the determination of three petitions that challenged the election of the President-elect. The recommendations were meant to improve Kenyas electoral landscape and hence aid in the development of Kenyas democracy. The court had been greatly aided by the contributions of amici curiae. The court placed a heavy premium on the amici briefs that were filed by those it admitted in such capacity.