High Court Limits IEBC Power to Change Constituency Presidential Results

The High Court has upheld the legality of Kenya’s national presidential tallying centre while limiting the Independent Electoral and Boundaries Commission’s (IEBC) power to alter results declared at constituency level.

In a judgment issued on Tuesday, Justice Gregory Mutai ruled that the IEBC must use only certified constituency results when verifying presidential results at the national level. He said the process must be conducted collectively by the commission and directed that these principles be incorporated into electoral reforms ahead of the 2027 General Election.

The ruling followed petitions by Busia Senator Okiya Omtatah and opposition leaders Kalonzo Musyoka and Rigathi Gachagua, who challenged the constitutionality of the national tallying centre. They argued that Section 39 of the Elections Act and Regulation 83(2) gave the IEBC unlawful powers to re-tally or verify presidential results beyond the constituency level, creating a risk of manipulation.

The court dismissed the petitions but placed limits on the IEBC’s authority. It ruled that the commission cannot cancel, vary or alter presidential results declared at constituency level, which it recognised as final.

The judges, however, upheld the need for a central tallying centre to collate and verify the figures before a winner is declared. They described the national tallying process as necessary for identifying and resolving discrepancies in the results submitted from constituencies.

The judgment also requires the IEBC to make collective decisions during the national verification process, rather than allowing individual officials to exercise the commission’s powers independently. The court said these principles should form part of the electoral reforms being undertaken before the 2027 election.

The decision comes amid wider debate over Kenya’s electoral system. Former Chief Justice David Maraga has called for the abolition of the Bomas tallying centre, arguing that the Constitution does not provide for such a facility. Civil society organisations have also called for independent constituency servers to allow the public to access results in real time.

The courts are also expected to consider another major electoral issue: constituency and ward boundaries. Justice Mutai is scheduled to rule in February 2027 on a petition seeking to stop the elections until new boundaries are established.

The petitioners argue that the IEBC failed to fulfil its constitutional obligation to review electoral boundaries by March 2024. They say the absence of a review raises questions about fair representation, given demographic and economic changes since the last boundary review in 2012.