IEBC National Tallying Centre./FILE
The High Court has dismissed a bid by Busia Senator Okiya Omtatah to have the national tallying of presidential election results scrapped.
Justice Gregory Mutai, in his judgement on Tuesday, ruled that the Independent Electoral and Boundaries Commission (IEBC) is constitutionally required to tally and verify presidential results at the national level.
He, however, held that the commission cannot use the exercise to alter figures already declared and certified at the constituency level.
Senator Omtatah, alongside other petitioners, had argued that the constituency is the final point for tallying, verification and declaration of presidential results.
They also challenged Section 39 of the Elections Act, which provides for the transmission and tallying of presidential election results at different levels.
According to the petitioners, the provision created an additional layer through which the IEBC could re-tally or re-verify results after they had been declared by constituency returning officers.
Omtatah contended that the national tallying centre should only collate results from the 290 constituencies before the IEBC chairperson declares the winner.
The petitioners maintained that allowing another verification process at the national level could undermine the finality of constituency results.
“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?” the judgement was read in part.
The IEBC opposed the challenge, maintaining that the national process is provided for in law and is intended to verify the accuracy of results and establish whether a presidential candidate has met the constitutional threshold.
The commission submitted that national tallying does not give it power to alter constituency results, but involves checking and aggregating figures received from the constituencies.
The Supreme Court, the court heard, has also previously held that the power to verify and tally presidential results at the national tallying centre belongs to the IEBC as a collective body, rather than its chairperson alone.
In his determination, Justice Mutai declined to invalidate Section 39(1)(cb) of the Elections Act and Regulation 83(2), finding that the national tallying and verification framework is constitutional.
The judge described tallying as the arithmetic aggregation of constituency figures into county and national totals.
Verification, he explained, involves checking whether the aggregated figures correspond with those declared and certified at the constituency level.
“The tally and verify function is accordingly not an unconstitutional intrusion upon the constituency finality,” the judge observed.
The court, however, made clear that verification does not give IEBC authority to change individual constituency results.
The judge said confirmation under Regulation 83(2) must be understood as checking whether the aggregated figures correspond with those certified by constituency returning officers and meet the constitutional threshold.
He added that it does not give the commission power to “add, subtract, multiply, divide, cancel or otherwise revise any individual constituency figures.”
The court declared that presidential results declared and certified at constituency level are final and may only be challenged before an election court.
It further directed that certified Forms 34A and 34B, or their successors, displayed at constituency tallying centres should be the primary reference documents when national results are aggregated.
The court, subsequently ordered that national verification be undertaken collectively by the IEBC, with all commissioners participating and having access to the underlying data.
Candidates' agents and observers, it noted, should also have real-time access to the same data available to the commission during the national tallying and verification exercise.
Where electronically transmitted results differ from physically delivered records, the court directed the commission to document the discrepancy, explain how it was resolved and make the record public by the time the final presidential result is declared.
The ruling therefore preserves the national tallying framework while making clear that the exercise is limited to aggregation and verification of constituency results ahead of the 2027 general elections.
