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High CourtDismissedPetition (undated, filed August 2022)

Kelvin Kipkurui Kilel & another v Independent Electoral and Boundaries Commission & 2 others (constitutional petition)

High Court of Kenya
9 January 2025
4,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's High Court ruled the IEBC has no permanent duty to keep election result forms online once a presidential election and any disputes are concluded.

What this practically means

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Executive summary

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The petitioners, by an undated petition supported by an affidavit sworn on August 7, 2022, sought declarations and a mandatory order compelling the 1st and 2nd respondents (the IEBC and its officials) to maintain a publicly accessible online portal holding all Forms 34A, 34B and 34C for the presidential election during the election, at tallying, and after announcement of results, on the basis of section 39(1C) of the Elections Act and articles 10, 20, 35, 38, 47, 86, 137 and 232 of the Constitution. They relied on the Raila Odinga 2017 and Maina Kiai 2017 decisions and on reports of difficulties accessing the 2017 portal, seeking pre-emptive orders for the 2022 General Election. The respondents replied through Martin Nyaga Wachira's affidavit, asserting that a public portal was maintained for 90 days after the 2022 election, during which all forms were accessible and downloadable, and that closure was justified because section 39(1C)(c) applies only 'for purposes of a presidential election' and continued maintenance would be costly. The 3rd respondent filed nothing. The court framed three issues and held, first, that the dispute was essentially one of statutory interpretation, not a constitutional controversy, invoking constitutional avoidance; secondly, that the petition was pre-emptive and moot, its particulars of violation lacking Anarita Karimi Njeru precision; and thirdly, on the merits, that the duty under section 39(1C)(c) is discharged once the presidential election and any electoral dispute are concluded, with no perpetual duty to maintain the portal for research or audit. The 90-day availability was reasonable, and no one was shown to have been denied information on request; the Access to Information Act mechanism was not exhausted. The petition was dismissed on January 9, 2025, with no express costs order.

Key legal issues

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01

Scope of section 39(1C)(c) of the Elections Act

Holding

The duty to publish polling result forms on an online public portal is limited to the presidential election; it does not create a perpetual archival obligation, and maintaining the portal for 90 days after the election was reasonable.

Reasoning

The court read section 39(1C)(c) purposively and in context of the Elections Act's subject matter. The opening words 'for purposes of a presidential election' confine the duty to the electoral cycle. Once results are verified and any electoral dispute determined with finality, the statutory duty is discharged. A perpetual portal for research and audit is not contemplated by the Act; such purposes are subsidiary to the Act's main aim of delivering transparent elections.

p. 10
02

Whether the petition raised a constitutional question

Holding

No; the dispute was essentially one of statutory interpretation, and the constitutional court should defer under the doctrine of constitutional avoidance.

Reasoning

The petitioners did not allege that section 39(1C) was inconsistent with the Constitution or invalid; they merely sought a broad reading aligned with constitutional principles. Citing Wakhanyanga and Athmani Hassan, the court held that where legislation gives effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging the legislation.

p. 7
03

Mootness and precision of the petition

Holding

The petition was pre-emptive and became moot once the respondents complied during the elections; the takedown of the portal after 90 days was not specifically pleaded, and the particulars of violation lacked Anarita Karimi Njeru precision.

Reasoning

The petitioners admitted the respondents published the results as mandated and that they were easily accessible, dispelling the apprehension underlying the pre-emptive prayers. The complaint about pulling down the portal arose from subsequent circumstances not raised in the petition. Further, the particulars of alleged violation did not disclose with reasonable precision the manner of infringement.

p. 9
04

Violation of article 35 (access to information) and exhaustion of statutory remedies

Holding

No violation established: no evidence that any person was denied information upon request, and the Access to Information Act procedure (sections 7, 14, 21, 23) was not invoked before coming to court.

Reasoning

The petitioners had to discharge the initial burden of proof (Gwer v KEMRI; Evidence Act sections 108 and 109) and satisfy the Anarita Karimi Njeru threshold. They did not allege a specific refusal to supply information, did not follow the ATI Act request and CAJ review mechanism, and could not bypass the statutory dispute-resolution route without demonstrating reasons for doing so (Dock Workers Union; Savraj Singh Chana; Gabriel Mutava).

p. 11

Legal principles established

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  • The duty under section 39(1C)(c) of the Elections Act to publish presidential polling result forms on an online public portal is confined to the purposes of the presidential election and is discharged once the election and any electoral dispute are concluded; there is no perpetual duty to maintain the portal for research or audit purposes.
  • A dispute that principally revolves around the meaning and scope of a statutory provision is not a constitutional controversy and should be resolved through ordinary statutory avenues (constitutional avoidance).
  • Where a statutory mechanism (such as the Access to Information Act process through the Commission on Administrative Justice) exists for resolving an access-to-information dispute, that procedure should first be exhausted before approaching the constitutional court.

Court orders

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  1. 1.The Petition is dismissed
Jurisdiction invoked
Article 165(3) of the Constitution (constitutional petition for enforcement of fundamental rights); the judgment itself does not state the jurisdictional provision expressly

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kelvin Kipkurui Kilel & another v Independent Electoral and Boundaries Commission & 2 others (constitutional petition)", Case Analysis (2025). Petition (undated, filed August 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.