Courts emerge as new battleground months before General Election

As the country heads towards the next General Election, more court battles are being lodged, with a likelihood of affecting how Kenyans will vote.

From the Bomas tally to the challenge against reshuffles in the Independent Electoral and Boundaries Commission (IEBC) and battles over procurement of ballot papers and election technology, the cocktail of cases sees more litigants trooping to court based on jitters and the high stakes in who makes it to State House, counties and legislators.

Godfrey Muhya is the latest to move to the High Court. His issue is that the Ethekon Edung-led commission had reshuffled the staff.

According to his court papers, exclusively seen by The Standard on Saturday, Muhya argued that it was bad timing to have IEBC employees move to new stations as the country is too close to the polls.

“The decision may disrupt established reporting structures, stakeholder relationships, logistical arrangements, training programs, technical systems, operational plans and mechanisms for coordinating between the respondent’s various offices and departments,” argued Muhya.

He insisted that there was no justification for why the commission had opted to reshuffle the 24 senior officials.

The Democracy for Citizens Party (DCP) had initially alleged that the officers had been reshuffled for allegedly failing to defend the new election technology tender.

Edung, on the other hand, disputed the claim, saying that this was meant to taint the commission’s image.

 In court, Muhya argued that the commission, however, did not also justify whether the transfers were necessary.

“The impugned decision is arguably irrational because it threatens to disrupt institutional arrangements at the very stage when the respondent ought to be consolidating its electoral preparedness,” he continued.

A stone’s throw away from where Muhya filed his case, Oilmax Ventures Limited has its case before Justice William Musyoka.

The firm sued IEBC over the tender to print ballot papers. The Judge suspended the tendering process until October 7, when the case will be mentioned in preparation for a judgment nine days later.

The deadline for tendering was September 10, 2026. However, Oilmax argued that the tender had allegedly been ringfenced around international pool, while leaving out local companies. It said a requirement for evidence that a company had previously printed at least 150 million ballot papers, among others, was too prohibitive for the local companies.

However, Busia Senator Okiya Omtatah’s case on adoption of technology may complicate the ballot printing exercise as he seeks a fully electronic system, or a paperless voting exercise.

He argued that the Constitution does not speak about a hybrid system, where a vote is cast and counted manually, and the results are relayed electronically.

The Commission, on the other hand, argued that the law is settled on how Kenya should conduct its election.

This comes as the High Court is expected on Tuesday next week to settle the long-standing dispute on whether verification should be done at Bomas or by the returning officers at the Constituencies.

Lawyers Waikwa Wanyoike and Willis Otieno, in an online discussion, were of the view that Article 138 (3) speaks to the commission and not the commissioners, meaning that the IEBC chair ought to declare the results verified by the returning officers from the 290 constituencies and not what the commission collates at Bomas.

This is the issue at the heart of the case by Omtatah, United Opposition Coalition leaders Kalonzo Musyoka, Rigathi Gachagua, Fred Matiang’i, Mithika Linturi and Justin Muturi, who urged the High Court to abolish the recount and verification of the presidential election at the National Tallying Centre, saying that there is no law to establish such a mechanism.

In their final submissions before High Court Judge Gregory Mutai, they said that the IEBC created an illegal office of a county returning officer and verification staff, despite the law and court judgment clarifying that the results are final.

Okiya submitted first. He asserted that only an election court has the power to reopen or scrutinise the results declared by the returning officer at the constituency level. He insisted that the avenue used for rigging is the creation of a separate level for reopening the results and re-tallying at the Bomas.

The Senator insisted that the exercise at the National Tallying Centre is illegal as it amounts to the commissioners and the IEBC chair usurping the powers of the constituencies’ returning officers. He said that

According to him, the work of the National Tallying Centre should be a simple collation of results from each constituency without modification, verification or alteration.

The Senator further argued that Section 39 of the Elections Act, Article 86 and Article 138 of the Constitution, adding that the sections indicate that the results from the constituency level are final and binding.

“The petitioner asserts that the introduction of this redundant verification step creates a contradiction: if the results at the constituency level are final (as per the Constitution), then what exactly is the IEBC verifying at the national tallying centre? This duplicative verification process has actually served no purpose other than to open the door for potential manipulation, errors, or inconsistencies that could undermine the integrity of the electoral process in the 2013, 2017 and 2022 general elections,” argued Omtatah.

He added that the role of the IEBC chair is almost a ceremonial one, as he is only required to announce the total results from the constituencies.

According to him, centralisation of tallying and verification of results violates the finality of results as required by the Constitution.

“The National Tallying Centre improperly reintroduces a level of discretion and delay into the process of declaring presidential results, contrary to the simple arithmetic requirement of Article 138(4),” he said.

Okiya’s case is the second contest filed against the commission in a bid to ring-fence the presidential contest to the constituencies.

In the meantime, the United Opposition Coalition leaders argued that once the results are collated at the polling stations and announced at the constituencies, the national tallying centre ought to adopt the same numbers without alteration or re-tallying.

According to them, re-tallying and re-verifying the results at the national tallying centre creates an opportunity for potential manipulation.

Their lawyer, Margaret Ngesa, stated that with the election being one year and eight months away, his clients are pushing for the commission to deliver an accurate and verifiable election.

Ngesa further stated that the practice adopted by the Ethekon Edung-led commission creates confusion about which of the results announced at the constituencies and those at the national tallying centre is final.

“This practice has resulted in immense confusion, created opportunities for manipulation and has been a primary source of litigation in every presidential election cycle. The current legal framework, particularly Section 39 of the Elections Act, is interpreted and applied by the Respondents to permit this parallel verification process. However, this process is not anchored in the specific provisions of the Constitution, which prescribe a clear and linear pathway for the tallying and declaration of results,” argued Ngesa.

She said that the commission has allegedly consistently failed to have the results verified at the constituencies before they are transmitted electronically.

She argued that the results of the election of the Members of the National Assembly and the County Women Representatives are final upon declaration by the constituency returning officer; then the presidential votes count should not undergo further verification or alteration at the national level.

“There exists no rational or justifiable constitutional basis for treating the results of the presidential election differently. The constitutional architecture for elections, as outlined in Article 86, is uniform. The creation of a separate, superior process exclusively for presidential results is an arbitrary and discriminatory practice that lacks a legitimate constitutional objective,” argued Ngesa.

She urged the court to force the commission to gazette all polling stations and make them public.

On the other hand, IEBC lawyers urged the court to dismiss the twin cases. Lawyers Wambua Kilonzo, Hassan Nura, and Moses Kipkogei separately argued that the issues raised involved an election and had been resolved by other courts.

Kilonzo, on his end, argued that all countries which were once ruled by Britain have a similar process.

“All Commonwealth countries have a centralised place where several processes are undertaken before a declaration of the winner,” argued Wambua.

At the same time, lawyer Kipkogei argued that the Supreme Court had in 2017 annulled the Presidential election after IEBC failed to verify the results.

He claimed that it is now clear that the power to verify and tally the results lies with the commission, which involves the staff. He said this happens at the National Tallying Centre.

“The issue has been resolved,” he replied, adding that it is clear that the returning officer is allowed to publish the results once they have been collated.

It is not the first time that the exercise at Bomas has been in court.

Former IEBC chair Wafula Chebukati in 2017 told the Supreme Court that he wanted the powers to correct Forms 34B in the event they do not tally with Forms 34A.

 When his lawyer Paul Nyamodi was asked by Supreme Court judge Isaac Lenaola what exactly he wanted the court to order, he said he needed the powers taken away by the Court of Appeal.

According to the lawyer, Chair is a helpless man who can do nothing but announce figures if they have errors, then wait for the consequences.

“What do you want us to do? You have the baby in your hands; what do you want?” Justice Lenaola asked.

Lawyer Nyamodi replied: “The Court of Appeal, with tremendous respect, took away the powers of the second respondent to correct the forms if they do not add up.”

Also submitting to the court on behalf of the IEBC, senior lawyer Kamau Kaori told the court that there is a likelihood of the country plunging into chaos, just like in 2007, if a winner is not announced.

 Lawyer Kamau told a five-judge bench composed of Chief Justice David Maraga (now retired), his deputy Philomena Mwilu and Justices Lenaola, Smokin Wanjala and Jackton Ojwang that if the chairman cannot announce a winner over errors in the forms, then chaos might erupt.

“Arising from the judgment of this honourable court, it is now unclear as to what, as the returning officer for the presidential election, the Chairperson ought to do, in view of the clear prohibition of the Court of Appeal in the Maina Kiai case barring the Chairperson from “varying, confirming, altering, modifying or adjusting the results” relayed to the national tallying centre,” said Kamau.

 At the same time, the court heard that it will be very easy for IEBC to face cases over issues that could be rectified administratively.

The judges heard that they did not offer a solution on what should be done after verification in the event it identifies errors in what its officers submit.

“We will be generating obvious petitions if we do not verify and correct the errors. We do not want a situation just like in 2007 where the then chairman said he did not know who the winner was,” lawyer Kamau argued.

 Both the Jubilee Party and then Attorney General Githu Muigai were in support of the application filed in court.

In their separate arguments, lawyers Kiragu Kimani and Immanuel Mbita argued that there was a legitimate concern which the court needed to address.

On the other hand, National Super Alliance, Ekuro Aukot and Law Society of Kenya asked the justices to dismiss the case as it was an appeal of the Court of Appeal orders.

The other case that has a likely direct implication on the election involves John Wangai, Peter Agoro and Antony Manyara. They argued that the country has no blueprint on Artificial Intelligence. Their concern was that AI is likely to be used for election disinformation and interfere with a free and fair election.

They argued that without safeguards in place, there is a likelihood of algorithmic profiling and manipulation in order to sway the votes in favour of either side of the divide.

“The 2027 elections are approaching, and Kenya has no legal framework to prevent or remedy AI-enabled electoral manipulation. This is not a hypothetical threat as deepfake technology and generative AI have already been used to manipulate elections in other jurisdictions, and such technologies are readily accessible in Kenya,” they argued.