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Supreme CourtDismissedPresidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)

Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae)

Supreme Court of Kenya
26 September 2022
Martha Karambu KoomeMartha K KoomePhilomena Mbete MwiluPhilomena M MwiluMohammed Khadhar IbrahimMohamed K IbrahimSmokin Charles WanjalaSmokin C WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaIsaac LenaolaWilliam OukoWilliam Ouko
37,832 words in judgment
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·~151 min to read original · ~4 min brief

The bottom line

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Supreme Court upheld Ruto’s win, but ruled IEBC must tally votes as a commission, not just its chair.

What this practically means

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Kenya’s Supreme Court dismissed Raila Odinga’s challenge to the 2022 presidential election and declared William Ruto’s election valid. The Court found no credible evidence that voting technology was hacked or that results were tampered with. However, the Court struck down a regulation that let the IEBC chairperson alone tally votes. The entire commission must now verify tallies before the chair announces the winner. Only valid votes count toward the 50%+1 threshold—rejected ballots cannot help any candidate win.

Executive summary

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This is the detailed judgment of the Supreme Court of Kenya, delivered on September 26, 2022, providing the reasons for its unanimous decision of September 5, 2022, which dismissed the consolidated presidential election petition challenging the election of William Samoei Ruto as President-elect. The court examined nine issues framed for determination. On technology, the court found that IEBC's KIEMS system met the constitutional standards of integrity, verifiability, security, and transparency, and that the petitioners failed to prove allegations of interference with the transmission of Forms 34A. The court held that there were no significant differences between Forms 34A uploaded on the Public Portal, those received at the National Tallying Centre, and those issued to agents. The court found that IEBC had the legal authority to postpone elections in certain areas due to a printer error, and that the petitioners failed to prove that this resulted in voter suppression. On vote discrepancies, the court accepted IEBC's explanation that differences were attributable to prisoners and diaspora voters who only vote for President, as well as stray and rejected ballots. The court clarified the constitutional roles of IEBC and its Chairperson, holding that the mandate of tallying and verification is vested in the Commission as a collectivity, while declaration vests exclusively in the Chairperson. The court declared Regulation 87(3) of the Elections (General) Regulations, 2012 unconstitutional for purporting to vest tallying and verification powers solely in the Chairperson. The court confirmed that the 1st respondent attained the 50%+1 constitutional threshold using only valid votes cast. The court found that the alleged irregularities and illegalities were not proved to the required standard. The court dismissed the consolidated petition, declared the election of the 1st respondent as President-elect valid, and ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the technology deployed by IEBC for the conduct of the 2022 General Election met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results.
  2. 2.Whether there was interference with the uploading and transmission of Forms 34A from the polling stations to IEBC’s Public Portal.
  3. 3.Whether there was a difference between Forms 34A uploaded on IEBC’s Public Portal and the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents at the polling stations.
  4. 4.Whether the postponement of Gubernatorial Elections in Kakamega and Mombasa Counties, Parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South Constituencies and electoral Wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency resulted in voter suppression to the detriment of the petitioners in Petition No E005 of 2022.
  5. 5.Whether there were unexplainable discrepancies between the votes cast for presidential candidates and other elective positions.
  6. 6.Whether IEBC carried out the verification, tallying, and declaration of results in accordance with article 138(3)(c) and 138(10) of the Constitution.
  7. 7.Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with article 138(4) of the Constitution.
  8. 8.Whether there were irregularities and illegalities of such magnitude as to affect the final result of the Presidential election.
  9. 9.What reliefs and orders can the Court grant/issue?

Key legal issues

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01

Whether the technology deployed by IEBC met constitutional and legal standards.

Holding

The court held that the technology met the required standards of integrity, verifiability, security, and transparency.

Reasoning

The court found that IEBC had procured the KIEMS system through a transparent process, conducted the required audits, and put in place complementary mechanisms for when technology failed. The petitioners failed to provide credible evidence of system compromise or unauthorized access. The Registrar's Report confirmed no security breaches were found.

p. 34
02

Whether there was interference with the transmission of Forms 34A.

Holding

The court held that there was no credible evidence of interference, staging, or manipulation of Forms 34A.

Reasoning

The court found that the allegations of 'dumping' 11,000 forms and 'man in the middle' attacks were not proved. The scrutiny exercise and Registrar's Report showed that the original Forms 34A matched those on the Public Portal. Logs presented as evidence were either from the 2017 election or forgeries. IEBC demonstrated robust security measures including VPNs, firewalls, and digital signatures.

p. 10
03

Whether the postponement of elections in certain areas resulted in voter suppression.

Holding

The court held that the postponement did not result in voter suppression to the detriment of the petitioners.

Reasoning

The court found that IEBC had the constitutional and legal authority to postpone elections under section 55B of the Elections Act due to a genuine mistake by the printer. The petitioners failed to present empirical evidence that the postponement was actuated by malice or that it suppressed voter turnout. IEBC demonstrated that low voter turnout was a nationwide phenomenon.

p. 59
04

Whether IEBC carried out verification, tallying, and declaration in accordance with Article 138(3)(c) and (10).

Holding

The court held that IEBC carried out the process in accordance with the Constitution, but clarified that the mandate of tallying and verification is vested in the Commission as a collectivity, not solely in the Chairperson.

Reasoning

The court interpreted Article 138(3)(c) to vest the duty of tallying and verification in the Commission as a collective body, while Article 138(10) vests the declaration of results exclusively in the Chairperson. The court found that despite the walk-out by four Commissioners, the process was carried out in accordance with the law. However, the court declared Regulation 87(3) unconstitutional for purporting to vest the power solely in the Chairperson.

p. 70
05

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

Holding

The court held that the 1st respondent attained the constitutional threshold.

Reasoning

The court applied the formula from Article 138(4) using only valid votes cast (excluding rejected votes), as established in Raila 2013. The court found that the 1st respondent's 7,176,141 votes exceeded the required 7,106,569 votes (50% of 14,213,137 valid votes + 1). The petitioners' calculations based on an uncorrected press briefing were rejected.

p. 17

Legal principles established

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  • Technology used by IEBC met constitutional standards for integrity, security, and transparency.
  • No credible evidence of hacking or manipulation of Forms 34A existed.
  • Election postponement due to printer error was lawful and not voter suppression without malice or empirical proof.
  • Tallying and verification is a collective IEBC duty; the chair alone cannot do it, but only the chair declares the result.
  • Only valid votes cast count toward the 50%+1 threshold; rejected votes are void.
  • Not every irregularity invalidates an election—only profound ones affecting the result or election integrity.

Court orders

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  1. 1.The Presidential Election Petition No E005 of 2022, as consolidated with Presidential Election Petition Nos E001, E002, E003, E004, E007 & E008 of 2022 is hereby dismissed.
  2. 2.As a consequence, we declare the election of the 1st respondent as President-elect to be valid under article 140(3) of the Constitution.
  3. 3.Regulation 87 (3) of the Elections (General) Regulations, 2012 is hereby declared unconstitutional to the extent that it purports to vest the power of verifying and tallying presidential election results, as received at the National Tallying Centre, solely on the Chairperson to the exclusion of other members of the Commission.
  4. 4.This being a matter of national public interest, we order that each party shall bear their costs.
  5. 5.We direct that sums deposited as security for costs be released to the petitioners.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
Martha K KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
Philomena M MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
Smokin C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
Isaac LenaolaSCJ
Currently serving
majority
William Ouko
William OukoSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(3)(a) of the Constitution as read with Article 140
Consolidated with
Presidential Election Petition No E001 of 2022, Presidential Election Petition No E002 of 2022, Presidential Election Petition No E003 of 2022, Presidential Election Petition No E004 of 2022, Presidential Election Petition No E007 of 2022, Presidential Election Petition No E008 of 2022

Relief refused

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Nullification of the presidential election

The court found that the election was conducted in accordance with the Constitution and the law, and that the petitioners failed to prove their allegations to the required standard.

p. 83

Removal of the Chairperson of IEBC from office

The court held that it lacked jurisdiction to grant such relief in a presidential election petition, as the process for removal is spelt out under Article 251 of the Constitution.

p. 80

Declaration that the Chairperson breached Article 73 of the Constitution

The court held that such a prayer cannot be made in a presidential election petition.

p. 80

Costs

each party shall bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Presidential Election Petition No E005 of 2022, as consolidated with Presidential Election Petition Nos E001, E002, E003, E004, E007 & E008 of 2022 is hereby dismissed.
p. 83 Final Orders - Dismissal
As a consequence, we declare the election of the 1st respondent as President-elect to be valid under article 140(3) of the Constitution.
p. 83 Final Orders - Declaration of Validity
Regulation 87 (3) of the Elections (General) Regulations, 2012 is hereby declared unconstitutional to the extent that it purports to vest the power of verifying and tallying presidential election results, as received at the National Tallying Centre, solely on the Chairperson to the exclusion of other members of the Commission.
p. 84 Final Orders - Declaration of Unconstitutionality
This being a matter of national public interest, we order that each party shall bear their costs.
p. 84 Final Orders - Costs
The mandate of tallying and verification of votes is vested in the Commission as a collectivity, and the Chairperson cannot exclude any member or members of the Commission. However the declaration of results vests exclusively in the Chairperson.
p. 70 Constitutional Interpretation - Roles of IEBC and Chairperson
In calculating whether a presidential candidate has attained 50% +1 of votes cast in accordance with article 138 (4) of the Constitution only valid votes cast can be considered. Rejected ballot papers, or votes are void and incapable of conferring upon any candidate a numerical advantage.
p. 74 Electoral Threshold - 50%+1 Calculation
The irregularities must be of such a profound nature as to affect the actual result, or the integrity of an election, for a court of law to nullify the same.
p. 77 Standard for Nullification of Election

Key timeline

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2022-08-09
Kenya held general elections, including the presidential election.
2022-08-15
IEBC Chairperson declared William Ruto President-elect.
2022-08-22
Raila Odinga and others filed petitions challenging the election.
2022-09-05
Supreme Court upheld Ruto’s victory and dismissed all petitions.

Practical implications

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For lawyers

Challenge IEBC Chair’s sole tally role

Regulation 87(3) is unconstitutional. In future election petitions, argue that the whole commission must verify tallies. If the chair acted alone, that’s a ground for invalidity. Also, use the ‘profound irregularity’ standard: allege that errors affected the result or integrity, not just minor breaches. Prepare to show malice or empirical proof on claims like voter suppression.

For businesses

Stable elections reduce regulatory risk

The Court’s dismissal without costs shows judicial support for election finality, reducing post-election uncertainty. Businesses can rely on a predictable cycle. But note the new collective tallying rule: monitor IEBC’s process for future compliance. Update any election-related contingency plans, as challenges may still arise but the Court requires high proof to overturn results.

For individuals

Your vote counts only if you cast it correctly; rejected ballots help no candidate. Report any technology glitches at your polling station to IEBC immediately—the Court said complimentary mechanisms work, but only if evidence is tracked. If you believe irregularities occurred, you need solid proof like forms or logs; mere allegations won’t overturn an election.

Frequently asked questions

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Why did the Kenya Supreme Court uphold the 2022 presidential election despite allegations of hacking?+

The Court found no credible evidence that IEBC’s technology was hacked or that Forms 34A were tampered with. Logs presented by petitioners were either from 2017 or forgeries. The Registrar’s Report confirmed no security breaches, so the Court ruled the technology met constitutional standards.

What did the Court say about IEBC tallying votes in Kenya’s 2022 election?+

The Court declared Regulation 87(3) unconstitutional because it let only the IEBC Chairperson tally and verify votes. The full commission must now do this collectively. However, only the Chair can declare the result. This means future elections require joint verification before announcement.

What is the 50%+1 rule for presidential elections in Kenya after this case?+

The Court confirmed you count only valid votes cast, not rejected ballots. To win, a candidate needs more than half of all valid votes plus one. In 2022, Ruto’s 7,176,141 valid votes exceeded the 7,106,569 threshold. Rejected votes cannot help any candidate gain an advantage.

Can a Kenyan election be nullified because of minor mistakes?+

No. The Court said only irregularities that deeply affect the result or election integrity can void an election. Minor procedural errors won’t suffice. You must prove the problem was profound and changed the outcome or undermined trust in the process. Petitioners failed to do this in the 2022 case.

Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae)", Case Analysis (2022). Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/56/eng@2022-09-26

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