The High Court of Kenya has dismissed a petition by Busia Senator Okiya Omtatah, which sought to have the national tallying and verification of presidential election results declared unconstitutional. The court ruled that the national aggregation of results is necessary to verify that presidential candidates meet the constitutionally prescribed nationwide threshold. This threshold requires a candidate to secure more than 50 per cent of all votes cast nationally, as well as at least 25 per cent of the votes cast in more than half of the counties.
Omtatah had argued that the Constitution places the primary and final responsibility for tallying, verifying, and declaring presidential results at the constituency level. He also sought orders barring the Independent Electoral and Boundaries Commission (IEBC) from re-tallying or re-verifying presidential results once they had been announced by constituency returning officers. However, the court found that national aggregation was necessary and rational, given the unique eligibility threshold for the presidency.
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. The judges noted that the dual threshold for presidential candidates could not be verified at constituency or county level. They described the national tallying process as a necessary and rational corollary of the Constitution's unique eligibility threshold for the presidency.
The court also dismissed claims that the national tallying process amounted to unjustified differential treatment contrary to Article 27 of the Constitution. On the question of discrepancies between electronically transmitted results and physical results delivered from polling stations, the court ruled that the result verified and declared at the respective polling station would prevail.
The court declined to quash Sections 39(1C) and 39(1G) of the Elections Act and Regulation 83 in their entirety, finding that Omtatah had adequately made his case on the central question of the constitutionality of provisions relating to the finality of constituency results. However, the court said other claims, touching on Article 35, ballot reconciliation, government timelines, and certain Article 27 arguments, fell short of the required threshold.
In its ruling, the court urged Parliament to consider reforms to electoral laws ahead of the 2027 General Election. The court invoked philosopher John Rawls' concept of the "veil of ignorance," saying lawmakers should design neutral electoral rules without knowing in advance who would benefit from them. This approach, the court said, would help ensure election laws serve the wider interests of Kenyans rather than the narrow, temporal, and variable goals of the political class.
The court's decision was delivered on September 22, 2026, by a panel of judges. The ruling provides clarity on the national tallying process for presidential elections in Kenya. The court's decision also emphasizes the importance of designing electoral laws that serve the wider interests of Kenyans.
Key points
- The High Court of Kenya has upheld the national tallying of presidential election results, dismissing a petition by Busia Senator Okiya Omtatah.
- The court's decision emphasizes the importance of national aggregation of results to verify that presidential candidates meet the constitutionally prescribed nationwide threshold.
- The court has urged Parliament to consider reforms to electoral laws ahead of the 2027 General Election.
