Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 5, 3 & 4 of 2013 (Consolidated)

Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated))

Supreme Court of Kenya
16 April 2013
Willy MutungaWM MutungaPhilip Kiptoo TunoiPK TunoiMohammed Khadhar IbrahimMK IbrahimJackton Boma OjwangJB OjwangSmokin Charles WanjalaSC WanjalaNjoki Susanna NdunguNS Ndungu
29,501 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~118 min to read original · ~4 min brief

The bottom line

#

The Supreme Court dismissed the 2013 presidential election petition, upholding Uhuru Kenyatta's win.

What this practically means

#

The Supreme Court ruled that only valid votes count when calculating the 50%+1 threshold for winning the presidency. Rejected ballots are not included. The court also said that election technology failures don't automatically invalidate an election if manual backups are used. The standard of proof in presidential petitions is higher than in normal civil cases, but not as high as criminal cases.

Executive summary

#
This landmark judgment is the Supreme Court of Kenya's first determination of a presidential election petition under the 2010 Constitution. Three consolidated petitions challenged the declaration of Uhuru Kenyatta as President-elect following the March 4, 2013 general election. The main petitioner, Raila Odinga, alleged that the electoral process was fundamentally flawed due to failures in electronic voter registration, identification, and results transmission systems; an unreliable voters' register; irregularities in vote tallying; and the improper inclusion of rejected votes in computing the winning threshold. The court unanimously dismissed all three petitions and upheld the election results. On the key legal issues, the court held that 'all the votes cast' in Article 138(4)(a) refers only to valid votes, excluding rejected ballot papers. It established the standard of proof in presidential election petitions as above the balance of probabilities but not as high as beyond reasonable doubt, except for data-specific constitutional requirements which must be proved beyond reasonable doubt. The court affirmed that the failure of electronic technology does not invalidate an election where a manual fall-back system is lawfully employed, and that the IEBC has discretion in deploying technology. It found the voters' register, though not a single document, was on the whole transparent and verifiable. The court also clarified that its jurisdiction in presidential election petitions is limited in extent and time, and declined to order a re-computation of vote percentages. Each party was ordered to bear its own costs, the court noting the public interest nature of the proceedings.

Questions the Court framed

#

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

  1. 1.Whether the 3rd and 4th respondents were validly elected and declared as President-elect and Deputy President-elect respectively, in the Presidential elections held on the 4th of March, 2013.
  2. 2.Whether the Presidential election held on March 4th, 2013 was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all relevant provisions of the law.
  3. 3.Whether the rejected votes ought to have been included in determining the final tally of votes in favour of each of the Presidential-election candidates by the 2nd respondent.
  4. 4.What consequential declarations, orders and reliefs this court should grant, based on the determination of the petition.

Key legal issues

#
01

Whether 'all the votes cast' in Article 138(4)(a) of the Constitution includes rejected votes.

Holding

The phrase 'all the votes cast' refers only to valid votes cast and does not include rejected ballot papers.

Reasoning

The court adopted a purposive interpretation of Article 138(4), guided by the progressive character of the Constitution and its national values and principles. It noted that rejected votes are void and incapable of conferring any numerical advantage upon any candidate, and therefore should not be the basis for computing the 50%+1 threshold. The court agreed with the position taken by the Court of Appeal of Seychelles in Popular Democratic Movement v Electoral Commission, holding that counting rejected votes would render meaningless the distinction between valid and invalid votes.

p. 55
02

What is the standard of proof in a presidential election petition?

Holding

The standard of proof is above the balance of probability but not as high as beyond reasonable doubt, except for data-specific requirements under Article 138(4) which must be proved beyond reasonable doubt.

Reasoning

The court reviewed comparative jurisprudence from Nigeria, India, Zambia, Canada, and Mauritius. It held that election petitions are civil in nature but involve public interest, requiring a higher standard than ordinary civil cases. However, for specific constitutional thresholds like the vote percentage, the legal burden must be discharged beyond any reasonable doubt to ensure certainty in the outcome.

p. 42
03

Whether the failure of electronic technology (EVID and RTS) invalidated the presidential election.

Holding

The failure of electronic technology did not invalidate the election because the law does not mandate electronic voting as the sole method, and IEBC had discretion to revert to manual processes.

Reasoning

The court found that the Constitution and the Elections Act do not require elections to be conducted solely by electronic means. Section 44 of the Elections Act gives IEBC discretion to use appropriate technology. The court took judicial notice that technology is rarely perfect and that manual fall-back systems are lawful. The court also noted that the manual system served as a vital fall-back position and that the petitioners did not prove that the failure of technology affected the result of the election.

p. 47
04

Whether the Voters' Register was credible and whether its alleged defects vitiated the presidential election.

Holding

The voter registration process was on the whole transparent, accurate, and verifiable, and the register compiled from this process did serve to facilitate the conduct of free, fair and transparent elections.

Reasoning

The court accepted the IEBC's explanation of the compilation of the voters' roll, including the use of a biometric register, a special register for persons with disabilities, and the 'Green Book' as a primary reference document. The court found that the Principal Register is not a single document but an amalgam of several parts. While there were some irregularities in data capture, these were not substantial enough to affect the credibility of the electoral process, and no credible evidence showed they were premeditated to prejudice any candidate.

p. 50
05

Whether the Supreme Court has jurisdiction to order a re-computation of vote-tally percentages.

Holding

The court lacks jurisdiction to order a re-computation of vote-tally percentages as such a process falls beyond the election-contest mandate of the court.

Reasoning

The court held that its jurisdiction in a presidential election petition is limited to an inquiry into the validity or invalidity of the election. A re-computation of votes would involve the court stepping into the administrative role of the IEBC, which is not within the court's constitutional mandate. The court described this as falling within the 'rule of remoteness'.

p. 51

Legal principles established

#
  • Only valid votes cast count toward the 50%+1 threshold; rejected ballots are excluded.
  • The standard of proof in presidential petitions is above balance of probabilities but below beyond reasonable doubt, except for specific data requirements.
  • The Supreme Court's jurisdiction in presidential petitions is limited to legal, factual, and evidentiary questions within 14 days.
  • The voters' register is an amalgam of multiple parts, not a single document, and the 'Green Book' is a lawful reference.
  • IEBC has discretion to use technology, and technology failure alone does not invalidate an election if manual fallback is lawfully used.

Court orders

#
  1. 1.Petition No 5 of 2013 in the consolidated petitions be and is hereby dismissed.
  2. 2.Petition No 4 of 2013 in the consolidated petitions be and is hereby dismissed.
  3. 3.Petition No. 3 of 2013 in the consolidated petitions, and with regard to the prayer for orders for the re-computation of vote-tally percentages by the 2nd respondent, is declined, for want of jurisdiction.
  4. 4.Each party shall bear their own costs.

The bench

#

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

Willy Mutunga
majority

Wrote the judgment

Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
SC WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
NS NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(3)(a) and Article 140 of the Constitution of Kenya, 2010
Consolidated with
Petition No 3 of 2013, Petition No 4 of 2013

Relief refused

#

Declaration that the Presidential election held on the 4th of March, 2013 is invalid

The court found that the evidence did not disclose any profound irregularity in the management of the electoral process, nor did it gravely impeach the mode of participation in the electoral process by any of the candidates.

p. 58

Order that there be a fresh election for the President of the Republic of Kenya

The court upheld the Presidential election results as declared by IEBC, finding that the candidate declared as President-elect had obtained the basic vote-threshold.

p. 58

Declaration that the 3rd respondent did not receive more than half of the votes cast

The court found that the evidence did not show that the candidate declared as President-elect had not obtained the basic vote-threshold.

p. 58

Order for re-computation of vote-tally percentages by the 2nd respondent (Petition No 3)

The court held that such a process of re-tallying of votes, re-computing and re-assignment of value falls beyond the election-contest mandate of this court.

p. 51

Costs

Each party shall bear their own costs.

Quotable passages

#

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 threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt – save that this would not affect the normal standards where criminal charges linked to an election, are in question.
p. 42 Standard of proof in presidential election petitions
This jurisdiction, however, is not boundless in scope: it is circumscribed in extent and in time.
p. 42 Scope of Supreme Court's jurisdiction in presidential election petitions
Since such technology has not yet achieved a level of reliability, it cannot as yet be considered a permanent or irreversible foundation for the conduct of the electoral process.
p. 47 Role of technology in elections
These findings lead us to the conclusion that the voter registration process was, on the whole, transparent, accurate, and verifiable; and the voter register compiled from this process did serve to facilitate the conduct of free, fair and transparent elections.
p. 50 Credibility of the Voters' Register
Petition No 5 of 2013 in the consolidated petitions be and is hereby dismissed.
p. 58 Final order - Dismissal of main petition
Each party shall bear their own costs.
p. 59 Costs order

Key timeline

#
2013-03-04
Kenya holds general elections; Uhuru Kenyatta declared winner.
2013-03-16
Raila Odinga and others file consolidated petitions challenging the presidential election.
2013-03-30
Supreme Court delivers judgment dismissing the petitions and upholding Kenyatta's win.

Practical implications

#
For lawyers

Proof standards for election petitions

When challenging a presidential election, you must prove your case above the balance of probabilities. For specific data claims like vote percentages, you must prove them beyond reasonable doubt. This means gathering concrete evidence, not just allegations. Prepare for a tight 14-day timeline and focus on legal, factual, and evidentiary issues within the court's limited scope.

For businesses

Election technology reliability matters

If your business relies on election-related technology contracts, note that the court accepts technology failures as normal. IEBC can revert to manual processes without invalidating results. Ensure your contracts with IEBC include clear fallback procedures and liability limits for technology failures. The court's view that technology is not yet 'permanent or irreversible' may affect your risk assessment.

For individuals

Your vote counts only if valid

If you cast a ballot that is rejected (e.g., marked incorrectly), it won't count toward the 50%+1 threshold for the winner. This means your vote only matters if it's valid. To ensure your vote counts, follow all instructions on the ballot paper carefully. Rejected votes are void and give no advantage to any candidate.

Frequently asked questions

#
What does 'all the votes cast' mean in Kenya's presidential election law?+

The Supreme Court ruled that 'all the votes cast' in Article 138(4) of the Constitution refers only to valid votes. Rejected ballots are not counted when calculating the 50%+1 threshold. This means only properly cast votes determine the winner.

Can technology failure invalidate a Kenyan election?+

No, not automatically. The court said IEBC has discretion to use technology, and if it fails, manual fallback systems are lawful. The failure must be proven to have affected the result for it to invalidate the election.

What is the standard of proof in a Kenyan presidential election petition?+

It's above the balance of probabilities but not as high as beyond reasonable doubt. However, for specific data requirements like vote percentages, you must prove them beyond reasonable doubt. This is a higher bar than normal civil cases.

Is the voters' register in Kenya a single document?+

No. The Supreme Court said the Principal Register is an amalgam of several parts, including a biometric register and a special register. The 'Green Book' used as a reference document does not need express legal provision to be valid.

Later judgments citing this (12)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated))", Case Analysis (2013). Petition 5, 3 & 4 of 2013 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/6/eng@2013-04-16

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