The High Court has upheld the legality of the Independent Electoral and Boundaries Commission’s (IEBC) National Tallying Centre, rejecting petitions by Busia Senator Okiya Omtatah, Wiper leader Kalonzo Musyoka and former Deputy President Rigathi Gachagua challenging the national verification and declaration of presidential election results.
Justice Gregory Mutai ruled that national aggregation of presidential results is constitutionally and legally necessary, particularly because the winner must satisfy a nationwide threshold that cannot be established from a single constituency or county.
The judge, however, drew a firm distinction between aggregating and verifying results and altering results already declared at constituency level.
Justice Mutai barred the IEBC from altering, cancelling or varying presidential results declared by constituency returning officers. He further held that where there is a discrepancy between results at the national tallying centre and those declared at constituency level, the results declared at the polling-station level should prevail, according to reports of the judgment. Nairobi Leo+1
The decision settles, at least at the High Court level, a major legal dispute over the role of the National Tallying Centre ahead of the August 2027 General Election.
Court says national tallying is necessary
Justice Mutai said the national tallying process is not an additional or arbitrary burden imposed on presidential candidates but is required by the nature of the presidential election.
“The national aggregation and confirmation exercise is accordingly not an arbitrary extra burden imposed on presidential candidates or voters,” the judge ruled.
He added that no county or constituency could determine whether a presidential candidate had met the constitutional requirement of receiving more than half of all votes cast nationally and at least 25 per cent of the votes cast in each of at least 24 counties. Nairobi Leo
The judgment therefore preserves the National Tallying Centre as the venue where presidential results are nationally aggregated and the constitutional threshold for victory is confirmed.
Section 39 of the Elections Act and Regulation 83(2) of the Elections (General) Regulations provide the statutory framework for transmission, tallying and verification of presidential results at different levels. The petitioners had challenged those provisions, arguing that they created an additional layer of verification after constituency returning officers had declared the results. Monitor+1
IEBC cannot change constituency declarations
While upholding the national tallying centre, the court imposed an important limitation on the IEBC’s powers.
The commission cannot use the national tallying process to alter, cancel or vary presidential results that have already been declared at constituency level.
That distinction is significant because the IEBC had maintained that the National Tallying Centre’s role was to verify and aggregate results rather than change them.
In court papers filed in the case, IEBC Chairperson Erastus Ethekon said the commission could not compromise or alter results declared by the 290 constituency returning officers.
“The NTC does not ‘alter’ or ‘manipulate’ results but verifies scanned Forms 34As and the tallied Forms 34Bs (Constituency Tallies) against the originals for accuracy,” Ethekon said in his affidavit. The Star
He argued that the national centre was necessary for the commission to tally the results received from constituencies before the chairperson formally declares the presidential result.
According to the IEBC’s position, constituency returning officers receive and verify original polling-station results, collate them into constituency results and announce them before forwarding the tallies to the national centre. The Star
Petitioners wanted national tallying scrapped
Omtatah’s petition challenged the establishment and operation of the National Tallying Centre, arguing that presidential results should effectively become final after their declaration by constituency returning officers.
He sought orders stopping the IEBC from re-tallying or re-verifying presidential results at the national level.
The petition also challenged Section 39 of the Elections Act and Regulation 83(2), arguing that the provisions permitted additional layers of verification contrary to Articles 86 and 138 of the Constitution. Monitor+1
The petitioners further sought greater public access to constituency-level results, arguing that simply publishing results on the IEBC’s online portal was insufficient to meet constitutional requirements on access to information. They wanted constituency results placed immediately in the public domain for access by political parties, the media and other interested parties. Monitor
The cases were filed against the IEBC, its chairperson, the Attorney-General, the National Assembly and the Senate.
Supreme Court precedent
The debate over the National Tallying Centre is not new.
In the 2017 presidential election petition, the Supreme Court discussed the IEBC’s verification responsibilities at different stages of the electoral process. The court stated that the duty to verify results extends from the polling station through the constituency level and ultimately to the National Tallying Centre.
“The critical element here is the duty placed upon the Commission to verify the results before declaring them,” the Supreme Court said in its 2017 judgment. SheriaHub
The court added that the purpose of verification was to ensure that declared results corresponded with those recorded at polling stations, rather than to change the results.
The IEBC relied on this and other previous presidential-election decisions in asking the High Court to dismiss Omtatah’s challenge. The Star
What the ruling means for 2027
The judgment leaves the National Tallying Centre in place for the 2027 presidential election while placing a judicial limit on what can be done there.
The IEBC will therefore retain the national function of aggregating constituency results and determining whether a presidential candidate has met the constitutional threshold. But the commission cannot treat the national tallying exercise as an opportunity to alter constituency declarations.
The ruling also gives Parliament a role in the next phase of the debate. Justice Mutai directed lawmakers to take the court’s interpretation of Section 39 into account as they consider electoral legislation ahead of the 2027 election. Nairobi Leo
The case comes less than a year before the scheduled August 10, 2027 General Election, making the judgment one of the significant legal rulings shaping the framework under which the next presidential vote will be administered. Monitor
For the IEBC, the ruling preserves the existing national tallying architecture. For the petitioners, however, the court’s restriction against changing constituency results provides an important clarification on the limits of the national centre’s role.
The ruling may also become relevant if Parliament proceeds with amendments to the Elections Act or related regulations before the 2027 election.
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