The High Court has rejected Busia Senator Okiya Omtatah’s bid to scrap the National Tallying Centre for presidential elections, with Justice Gregory Mutai upholding the legal framework allowing presidential results to be tallied and verified at the national level.
Justice Mutai ruled that Section 39(1C) of the Elections Act and Regulation 83(2) of the Elections (General) Regulations are constitutional, dealing a blow to Omtatah’s challenge to the role of the national tallying centre ahead of the 2027 General Election.
Omtatah had argued that once presidential results are tallied, verified and declared by constituency returning officers, they become final and should only be collated at the national level. He wanted the IEBC stopped from undertaking a further process of tallying or verification at the national centre.
Justice Mutai, however, found that presidential elections are subject to a unique constitutional threshold that makes national aggregation necessary. The Constitution requires a presidential candidate to secure more than half of all votes cast nationally and at least 25 per cent of the votes cast in at least 24 counties.
“The national aggregation and confirmation exercise is accordingly not an arbitrary extra burden imposed on presidential candidates or voters,” Justice Mutai held. He added that the national process is necessary because the constitutional threshold cannot be established at constituency or county level. “No county level or constituency level vantage point can address compliance with a nationwide 50 plus 1 and 24 county threshold,” the judge ruled.
The court consequently dismissed Omtatah’s argument that the national tallying arrangement amounts to unjustified discrimination contrary to Article 27 of the Constitution.
Justice Mutai also ruled that where there is a discrepancy between electronically transmitted results and physically delivered results, the result that accurately reflects what was verified and declared at the respective polling station should prevail. The judge declined to strike down Section 39, including Sections 39(1C) and 39(1G), and Regulation 83 in their entirety.
On the wider constitutional challenge, Justice Mutai found that the petitioners had adequately presented their case on the question of the finality of constituency results but had failed to meet the required threshold on claims concerning Article 35, ballot reconciliation, timelines and Article 27.
The ruling leaves in place the current legal framework under which presidential results are transmitted from polling stations through the electoral structure to the national tallying centre for aggregation and verification.
Omtatah’s petition had sought to fundamentally alter that process, arguing that the national tallying centre created an additional layer through which results already declared at constituency level could be subjected to further scrutiny.
Justice Mutai, however, directed that Parliament should take into account the court’s interpretation of Section 39 when considering electoral legislation ahead of the 2027 election. The judge further urged lawmakers to approach electoral reforms without knowing which political interests would ultimately benefit from the rules, invoking philosopher John Rawls’ “veil of ignorance” theory.
He said the approach would help Parliament design electoral laws that serve the broader interests of Kenyans rather than “the narrow, temporal and variable goals of the political class.”
The court also ordered each party to bear its own costs, given the public interest nature of the petitions.
