In a pivotal judgment delivered ahead of the 2027 General Election in Okiya Omtatah Okoiti v Independent Electoral and Boundaries Commission & 4 others (Consolidated with Stephen Kalonzo Musyoka & 5 others v Independent Electoral and Boundaries Commission & 4 others), High Court Petition No. E757 of 2025 (Consolidated with Petition No. E753 of 2025) [2026] KEHC, the Milimani High Court has decisively defined the constitutional boundaries of Kenya's presidential tallying architecture. Presiding over the consolidated petitions filed by Senator Okiya Omtatah and principals of the United Opposition Coalition (Kalonzo Musyoka, Rigathi Gachagua, Fred Matiang'i, Eugene Wamalwa, Franklin Mithika Linturi, and Justin Muturi), Hon. Mr. Justice Gregory Mutai rejected calls to scrap the National Tallying Centre (NTC) while firmly barring the Independent Electoral and Boundaries Commission (IEBC) from altering constituency-level results.
The Clash Over the Tallying Centre
The petitioners mounted a facial constitutional challenge against Section 39 of the Elections Act, 2011 and Regulation 83 of the Elections (General) Regulations, 2012. They argued that under Articles 86 and 138 of the Constitution, the declaration of results by a Constituency Returning Officer (Forms 34A and 34B) is final and sovereign. Subjecting those numbers to further "verification," "re-tallying," or "confirmation" at the national level, the petitioners contended, introduced an unconstitutional backdoor for parallel, opaque reviews capable of overturning the will of voters.
The IEBC, its Chairperson, the National Assembly, the Senate, and the Attorney General pushed back. They maintained that national tallying is not an evaluative recount but an indispensable constitutional mechanism: the Commission must aggregate the 290 separate constituency returns to confirm whether the winning candidate satisfies the Article 138(4) threshold of more than 50% of total votes cast and at least 25% of the votes in over half of the counties.
Why the Court Refused to Declare the National Tallying Centre Unconstitutional
Justice Mutai declined to declare the NTC unconstitutional or quash Section 39 and Regulation 83(2), grounding his refusal in five reasons:
1. Constitutional Necessity of National Collation: Under Article 138(4), a presidential candidate must secure more than 50% of the national vote and at least 25% of the votes in more than half of the counties. The judge held that this unique, nationwide threshold cannot, by definition, be assessed or calculated at any individual polling station or constituency level; a national aggregation mechanism is mathematically and legally indispensable.
2. Harmonious Reading of Articles 86 and 138: The court held that Articles 86 and 138 are not in conflict. While Article 86(b) and (c) confers finality on the count and certification at the polling station and constituency, Article 138(3)(c) explicitly commands the Commission to "tally and verify the count and declare the result" after counting at polling stations. Section 39(1C)(b) simply mirrors this explicit constitutional command and cannot be ultra vires the very Constitution it executes.
3. Conflation of "Verification" with "Alteration": The judge found that the petitioners' challenge rested on an erroneous conflation of sequential terms. The court disaggregated the process into distinct steps: Count, Announce, Transmit, Tally, Verify, Resolve Discrepancies, and Declare. "Tally and verify" at the NTC operates only on data that is already final. It is comparative and confirmatory checking that forms match and thresholds are reached not an evaluative second count or license to add, subtract, or vary figures.
4. Internal Statutory Primacy of the Polling Station: The court noted that Section 39 contains its own internal safeguard: Section 39(1E) mandates that if any discrepancy arises between electronically transmitted and physically delivered results, the record tallied and declared at the polling station must prevail. The NTC is therefore evidentiary scaffolding around the primary record, not a substitute source of truth.
5. Binding Precedent (Stare Decisis): The court held that the question had already been settled by the Court of Appeal in IEBC v Kiai (holding constituency figures are final) and the Supreme Court in Odinga v Ruto (affirming the Commission's collective mandate to tally and verify under Article 138(3)(c)). Applying stare decisis, the High Court held it was bound by the Supreme Court interpretation that a bounded national tally-and-verify exercise is lawful. Rather than striking down the framework, the court chose to read it down and preserve its constitutionality by clearly circumscribing its boundaries.
The court also dismissed accompanying prayers regarding mandatory ballot-reconciliation frameworks, minimum gazettement timelines, and an end to online-only portal publishing under Article 35, finding that the petitioners failed to tender evidence of actual rights infringements and declining to usurp ongoing parliamentary reforms.
Safeguards Ahead of 2027
Drawing cautionary lessons from overturned elections across the region including Malawi 2019 presidential election the court codified five mandatory safeguards for the 2027 polls: strict documentary primacy of certified constituency forms, collective and recorded commissioner deliberations, open real-time access for party agents and observers, contemporaneous public logging of any discrepancies, and an absolute prohibition on ex post facto alterations.
Opportunities for Appeal: What Can Be Clarified
While the High Court provided an elaborate sequential reconciliation of the electoral process, the judgment leaves substantial constitutional openings for appellate intervention before the Court of Appeal and the Supreme Court:
Departing from an Unclear Application of Stare Decisis: A prime avenue of appeal lies in challenging Justice Mutai's reliance on stare decisis. While the High Court conceded that strict res judicata did not apply because the parties and causes of action differed, it nevertheless held that Odinga v Ruto [2022] foreclosed a facial constitutional challenge to Section 39 and Regulation 83(2). On appeal, the petitioners can argue that Odinga v Ruto was an election petition determined on its distinct evidentiary record under Article 140, not an abstract challenge to the statutory vires of the tallying architecture. The appellate courts can clarify that Odinga never substantively harmonized its holding with the Court of Appeal's clear embargo in IEBC v Kiai against higher-level verification powers, thereby liberating appellate benches to depart from the High Court's perceived constraint under Article 163(7).
The Practical Reality of "Verification" vs. "Alteration": The appellate court can scrutinize whether the High Court's distinction between a "comparative check" and an "alteration" is an unworkable judicial fiction. If the Commission discovers a material discrepancy during national tallying, yet lacks the power to adjust the numbers, appellate guidance is urgently needed to settle whether the NTC must mechanically declare flawed figures or refer them back, averting institutional deadlock.
Judicial Reading-Down vs. Remedial Usurpation: By formulating five detailed institutional safeguards to rescue Section 39 from unconstitutionality, the High Court effectively engaged in extensive reading-down. An appeal provides the opportunity to test whether the court crossed the line into judicial legislation, or whether Section 39 should have been declared unconstitutional outright to compel Parliament to enact precise boundaries.
Refining the Article 35 Threshold for Public Electoral Data: The dismissal of the Article 35 challenge for "want of particularized evidence" opens room for appellate review on whether access to public election forms must be guaranteed proactively through broad-based, low-tech channels, rather than assuming nationwide, unhindered access to an online portal.
Escalating this dispute up to the Supreme Court swiftly is vital for national stability and electoral certainty ahead of the 2027 General Election. Leaving these structural questions lingering at the High Court level risks repeating the high-stakes tally-room discord witnessed in past election cycles. Because Justice Mutai candidly acknowledged that any ambiguity in the legal framework will inevitably "seed the election Petitions in the upcoming elections", only an authoritative, apex pronouncement by the Supreme Court under Article 163 can definitively harmonize Maina Kiai and Odinga v Ruto. Resolving the true constitutional scope of "tally and verify" well before the campaign season heats up ensures the electoral commission, political formations, and the electorate enter the 2027 contest with settled rules, undisputed operational boundaries, and final legal certainty.