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Case Brief · caselaw.co.ke
Supreme CourtPartially AllowedElection Petition 1 of 2017· [2017] KESC 31 (KLR)

Odinga & another v Independent Electoral and Boundaries Commission & 2 others

Supreme Court of Kenya
28 August 2017
10,546 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Court grants limited access to election materials but rejects blanket scrutiny.

What this practically means

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The Supreme Court ruled that Raila Odinga and his team can inspect specific election documents and technology used in the 2017 presidential election, but cannot go on a fishing expedition. They must stick to their original claims and cannot demand access to everything. The court allowed them to see forms from polling stations and some technical data, but refused requests that would compromise security or delay the case. This decision balances the need for transparency with the tight deadlines for election petitions.

Executive summary

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This is a ruling on a notice of motion filed by the petitioners in the 2017 Presidential Election Petition, seeking orders for scrutiny of votes and access to technological materials used by the Independent Electoral and Boundaries Commission (IEBC). The petitioners alleged that the election results were compromised due to irregularities in the transmission of results, manipulation of Forms 34A, 34B, and 34C, and interference with the KIEMS system. They sought access to hardware, software, servers, and logs, as well as certified copies of election forms, and leave to file further affidavits. The 1st and 2nd respondents opposed the application, arguing it was a fishing expedition and that the orders sought were impractical given the strict timelines. The 3rd respondent also opposed, contending that the election was conducted lawfully. The Supreme Court, applying its precedents in Gatirau Peter Munya v Dickson Mwenda Kithinji and Nicholas Kiptoo Arap Salat v IEBC, held that scrutiny is not a matter of course and must be based on sufficient reason and specific pleadings. The court partially allowed the application, granting the petitioners and the 3rd respondent read-only access to certified copies of Forms 34A, 34B, and 34C, and limited access to technological information such as server details, password policies, penetration test reports, and logs, but refused blanket access to all hardware and software, and refused leave to file further affidavits. The court ordered the Registrar to supervise access to the forms and appointed an ICT officer and independent experts to supervise access to technology, with reports to be filed within 48 hours. There was no order as to costs.

Key legal issues

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01

Whether the petitioners are entitled to an order for scrutiny of votes and access to technological materials used in the Presidential Election.

Holding

The court partially allowed the application, granting access to Forms 34A, 34B, and 34C, and limited access to technological information, but refused blanket access to all hardware and software, and refused leave to file further affidavits.

Reasoning

The court applied the principles from Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others and Nicholas Kiptoo Arap Salat v IEBC & 7 others, which require that a party seeking scrutiny must establish a sufficient basis and that the request must be specific. The court found that the petitioners had pleaded a basis for scrutiny of Forms and certain technological aspects, but that some prayers were impractical, would compromise system security, or amounted to a fishing expedition. The court balanced the need for a fair determination against the strict timelines for presidential election petitions.

02

Whether the court should grant leave to file further affidavits after the scrutiny exercise.

Holding

The court refused the prayer for leave to file further affidavits, as it would delay proceedings and prejudice the respondents.

Reasoning

The court noted that only less than 4 days remained for hearing and determination of the petition. Granting leave to file further affidavits would delay the proceedings and prejudice the respondents who would not have adequate time to respond.

Legal principles established

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  • A party seeking scrutiny of election materials must make a specific request, not a general one.
  • Scrutiny is not automatic; the applicant must show a good reason for it.
  • Parties are bound by their pleadings and cannot use scrutiny to gather new evidence.
  • The court will not order access that compromises system security or is impractical.
  • Election petitions must be resolved quickly, so delays for further evidence are not allowed.

Court orders

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  1. 1.The petitioners and the 3rd respondent shall be granted read only access, which includes copying (if necessary) to information relating to the number of servers, firewalls without disclosure of the software version, operating systems without releasing the software version, password policy, password matrix, system user types and levels of access, the IEBC Election Technology System Redundancy Plan, certified copies of certificates of Penetration Tests, specific GPRS location of each KIEMS Kit, certified list of all KIEMS Kits procured but not used, polling station allocation for each KIEMS Kit, Technical Partnership Agreement(s), log in trail of users and equipments into the IEBC Servers, log in trails of users and equipments into the KIEMS Database Management Systems, administrative access log into the IEBC public portal, certified photocopies of the original Forms 34A, 34B and 34Cs, Forms 34A, 34B and 34C from all 40,800 polling stations, and scanned and transmitted copies of all Forms 34A and 34B.
  2. 2.The Registrar of this court assisted by a number of judicial officers and staff as she may determine shall supervise access to the certified copies of original Forms 34A and Forms 34B by the petitioners and 3rd respondents at such a venue as she shall determine in consultation with the parties. A report on that exercise and related issues shall be filed by the Registrar by Tuesday, August 29, 2017 at 5.00 pm and parties are at liberty to submit on it at the end of the hearing.
  3. 3.In the exercise set out in (a) – (p) above, priority shall be given to the 292 Polling stations as deponed to at paragraph 12 of Norman Magaya Affidavit sworn on August 23, 2017; 688 polling stations as deponed to at paragraph 15 of Omar Yusuf Mohammed affidavit sworn on August 24, 2017; 14,078 polling stations as deponed at paragraph 70 of Dr Nyangasi Oduwo’s affidavit dated August 18, 2017
  4. 4.An ICT officer designated by this court from among its ICT staff and two independent IT experts appointed by the court shall supervise access to the technology in paragraph 72 above at such a venue as they may determine in consultation with the parties. A report on that exercise and related issues shall be filed by the said officer and experts by 5.00 pm on Tuesday, August 29, 2017 and parties are at liberty to submit on it at the end of the hearing.
  5. 5.The parties to the petition are entitled to have a maximum of two agents/experts in each of the exercises above. The agents shall at all times comply with the directions of the Registrar and the ICT officer to ensure expeditious conclusion of the above exercise.
  6. 6.There shall be no order as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 19
  • Constitution of Kenya, 2010Article 20
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23(3)
  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 81
  • Constitution of Kenya, 2010Article 86
  • Constitution of Kenya, 2010Article 140
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 258
  • Constitution of Kenya, 2010Article 259
  • Elections Act, No 24 of 2011Section 39
  • Elections Act, No 24 of 2011Section 39(1C)
  • Elections Act, No 24 of 2011Section 44
  • Elections Act, No 24 of 2011Section 44A
  • Elections Act, No 24 of 2011Section 82
  • Elections Act, No 24 of 2011Section 82(1)
  • Independent Electoral and Boundaries Commission Act, No 9 of 2011Section 27
  • Supreme Court Act, No 7 of 2011Section 12
  • Supreme Court Act, No 7 of 2011Section 21(4)
  • Supreme Court Act, No 7 of 2011Section 23
  • Supreme Court Act, No 7 of 2011Section 26
  • Access to Information Act, No 31 of 2016Section 2
  • Access to Information Act, No 31 of 2016Section 4
  • Access to Information Act, No 31 of 2016Section 6
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 33
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 29
  • Supreme Court (Presidential Election Petition) RulesRule 18
  • Elections (Technology) Regulations, 2017Regulation 10
  • Elections (Technology) Regulations, 2017Regulation 15
  • Elections (Technology) Regulations, 2017Regulation 16
  • Elections (Technology) Regulations, 2017Regulation 17
  • Elections (Technology) Regulations, 2017Regulation 20
  • Elections (Technology) Regulations, 2017Regulation 21
  • Elections (Technology) Regulations, 2017Regulation 24
  • Public Archives and Documentation Service ActCap 19
  • Kenya Information and Communications Act, 1998No 2 of 1998

Cases cited (14)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    Petition No 2B of 2014; [2014] eKLR
  • Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others
    Petition No 23 of 2014; [2015] eKLR
  • Nicholas Salat v Wilfred Rotich Lesan & others
    Civil Appeal No 228 of 2013
  • Hassan Mohamed Hassan & another v IEBC & 2 others
    HC at Garissa Election Petition No 6 of 2013; [2013] eKLR
  • Philip Mukwe Wasike v James Lusweti Mukwe & 2 others
    Bungoma High Court Petition No 5 of 2013; [2013] eKLR
  • Philip Osore Ogutu v Michael Aringo & 2 others
    Busia High Court Petition No 1 of 2013
  • Jacob Mwirigi Muthuri v John Mbaabu Murithi & 2 others
    High Court at Meru, Petition No 2 of 2013; [2013] eKLR
  • Rishad HA Amana v IEBC & 2 others
    High Court at Malindi Petition No 6 of 2013; [2013] eKLR
  • Dickson Mwenda Githinji v Gatirau Peter Munya & 2 others
    Civil Appeal No 38 of 2013; [2014] eKLR
  • Nathif Jama Adama v Abdikhaim Osman Mohamed & 3 others
    Petition No 13 of 2014; [2014] eKLR
  • Raila Odinga & 5 others v Independent Electoral & Boundaries Commission & 3 others
    Petitions No 3, 4 & 5 of 2013 (Consolidated)
  • Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & anr
    Civil Appeal Nos 5710-5711 of 2012; [2014] 2 SCR
  • Independent Electoral & Boundaries Commission (IEBC) v Maina Kiai & 5 others
    Civil Appeal No 105 of 2017; [2017] eKLR
  • National Super Alliance Kenya v Independent Electoral & Boundaries Commission & 2 others
    HC Constitution Petition No 328 of 2017
Jurisdiction invoked
Article 140 of the Constitution

Key timeline

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2017-08-08
Kenya holds presidential election; IEBC declares Uhuru Kenyatta winner.
2017-08-18
Raila Odinga files petition challenging election results.
2017-08-25
Odinga files application for scrutiny and access to election materials.
2017-08-26
Supreme Court issues ruling partially allowing the application.
2017-08-29
Deadline for court-appointed experts to report on accessed materials.

Practical implications

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For lawyers

Draft scrutiny applications with precision

When filing for scrutiny in election petitions, ensure your application specifies exact polling stations and documents. Vague requests targeting entire constituencies will be rejected. Also, avoid using scrutiny as a fishing expedition—the court will deny prayers that expand beyond your pleaded case. Prepare evidence of irregularities upfront to satisfy the 'sufficient reason' test.

For businesses

Protect sensitive data in legal disputes

If your company faces a court order to disclose technical systems, follow this ruling's approach: argue for limited access that protects trade secrets and security. The court here allowed inspection of logs and forms but refused blanket access to software versions and passwords. In Kenya, you can request supervised access by independent experts to balance transparency with confidentiality.

For individuals

Know your limits when challenging elections

If you challenge an election result in Kenya, you cannot demand to see every document or system. You must point to specific problems—like missing forms at certain polling stations—and ask for those only. The court will not let you go on a general search for evidence. Also, expect strict deadlines; the court prioritizes speed over extensive discovery.

Frequently asked questions

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Can I demand a recount of all votes in a Kenyan election petition?+

No. The Supreme Court ruled that you must specify which polling stations you want recounted and give a reason, like evidence of tampering. A general request for a full recount will be rejected.

What election materials can I access in a Kenyan presidential election petition?+

You can access certified copies of Forms 34A, 34B, and 34C from polling stations, plus limited technical data like server logs. But you cannot get passwords, software versions, or other security-sensitive information.

Can I file new evidence after getting election documents in Kenya?+

Unlikely. The court refused leave to file further affidavits after scrutiny, citing tight deadlines. You must include all your evidence in your initial petition.

What happens if I lose an election petition in Kenya—do I pay costs?+

Not necessarily. In this case, the court made no order as to costs, meaning each party paid their own expenses. But costs depend on the judge's discretion.

Later judgments citing this (6)

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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 & another v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2017). Election Petition 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/31/eng@2017-08-28

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