In Summary
  • The judges said the responsibility of verifying results was captured in the Constitution and the Elections Act. .
  • They said the Court of Appeal in the Maina Kiai case had not taken away the duty of the chairman to verify the results. 

Independent Electoral and Boundaries Commission chairman Wafula Chebukati cannot alter or amend results announced from the polling stations, the Supreme Court ruled.

He can only tally and verify the results to confirm if the winning candidate has met the 50-plus-one percentage vote threshold and garnered at least 25 per cent votes in at least 24 counties as required by Article 138(4) of the Constitution, the judges said, adding that if the chairman detects anomalies, he should announce the results and leave the matter to the court.

“It is, therefore, the duty of the 2nd respondent (Mr Chebukati), to bring to the attention of the public, any inaccuracies discovered by the verification of forms 34A and forms 34B even as he declares the results as generated from forms 34B to generate form 34C,” Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, and justices Jackton Ojwang’, Smokin Wanjala and Isaac Lenaola said.

They said the effect of such inaccuracies on an election depends on their gravity and that the national returning officer “must state whether the discrepancies affect the overall results or not”.

The five judges said the responsibility of verifying results was captured in the Constitution and Section 39 (1C) (b) of the Elections Act.

“The verification required of the 1st and 2nd respondents (IEBC and the chairman respectively) is meant to ensure accuracy or prevent fraud and also confirmation that the candidate to be declared president-elect has met the threshold set under Article 138(4) of the Constitution,” they added.

Justice Ojwang’ read a concurring opinion, supporting the decision of the other judges who said that the matter was dealt with by the Court of Appeal in the Maina Kiai decision of 2013.

“But for whatever it may be worth, we hereby reiterate that the 1st and 2nd respondents cannot correct errors identified in forms 34B or amend the forms 34B where the same differ with the results contained in the relevant Forms 34A.

"Theirs is to expose such discrepancies and leave the resolution of such issues to the election court, in this case, the Supreme Court,” the judges ruled.

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