Court upholds national tallying of presidential results in Omtatah case

NAIROBI, Kenya, Sep 22— The High Court has upheld the national aggregation and verification of presidential election results, dismissing a challenge by Busia Senator Okiya Omtatah against the process.

The court upheld Section 39(1C) of the Elections Act and Regulation 83(2) of the Elections (General) Regulations, which provide for the aggregation and verification of presidential results at the national level.

Omtatah had challenged the establishment and operation of the national tallying centre, arguing that the Constitution gives constituency returning officers the primary and final responsibility for tallying, verifying and declaring presidential results.

He had also sought orders barring the Independent Electoral and Boundaries Commission (IEBC) from re-tallying or re-verifying presidential results after their declaration at constituency level.

The court, however, found that national aggregation is necessary to determine whether a presidential candidate has met the constitutional threshold required to win the election.

Under Article 138(4) of the Constitution, a presidential candidate must secure more than half of all votes cast and at least 25 per cent of the votes cast in more than half of Kenya’s counties.

The judges said the two-tier threshold can only be established through national aggregation of presidential results.

“A national aggregation and confirmation exercise is accordingly not an arbitrary extra burden imposed on presidential candidates or voters,” the court held.

The judges described the national exercise as a “necessary and rational corollary” of the Constitution’s unique threshold for election as President.

The court also rejected arguments that national tallying amounts to discriminatory treatment contrary to Article 27 of the Constitution.

While upholding national aggregation, the court clarified that the process does not give IEBC authority to alter results declared at polling stations.

Where there is a discrepancy between electronically transmitted results and the physical results from a polling station, the result verified and declared at the polling station will prevail.

The judges also declined to strike down Sections 39(1C) and 39(1G) of the Elections Act and Regulation 83 in their entirety.

The court found that some other aspects of the petition had not been sufficiently supported by evidence, including claims relating to Article 35, ballot reconciliation, government timelines and aspects of the Article 27 challenge.

“These claims proceed largely by way of general assertion and invocation of constitutional provisions without the requisite nexus to a demonstrated or imminent violation,” the court said.

The judges also called on Parliament to review Kenya’s electoral laws ahead of the 2027 General Election.

In making the recommendation, the court referred to the political philosophy concept of the “veil of ignorance”, associated with philosopher John Rawls.

The judges said lawmakers should develop electoral laws without knowing which political actors or interests would ultimately benefit from them.

According to the court, such an approach would help produce electoral laws that serve the broader interests of Kenyans rather than the “narrow, temporal and variable goals” of political actors.

The ruling comes as Kenya prepares for the 2027 General Election, with questions surrounding the tallying, verification and declaration of presidential results expected to remain central to electoral reforms.