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ELCPartially AllowedSupreme Court of Kenya at Nairobi, Presidential Election Petition No. 1 of 2017 (with Supreme Court Petition No. 4 of 2017)

Musau v Musau & another (Environment & Land Case 97 of 2018) [2025] KEELC 3602 (KLR)

Supreme Court of Kenya
20 October 2017
David Kenani MaragaDavid Kenani MaragaPhilomena Mbete MwiluPhilomena Mbete MwiluPWPhilip Kiptoo WaweruNjoki Susanna NdunguNjoki Susanna NdunguIsaac LenaolaIsaac LenaolaLAL. A. Achode
1,052 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Supreme Court cancelled the 2017 presidential election because results were not properly verified against polling station forms, ordering a fresh vote within 60 days.

What this practically means

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Executive summary

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This consolidated judgment by the Supreme Court of Kenya (with the DCJ and Hon. L. A. Achode sitting by conference approval under Rule 10(2) of the Supreme Court (Presidential Election Petition) Rules, 2017) determined the validity of the August 8, 2017 presidential election under Article 140 of the Constitution. The Petitioners (Raila Amolo Odinga, Kalonzo Musyoka, Norman Magaya, Beatrice Kituyi, Willis Otieno, and Sazna Vivian Achieng) challenged the election of Uhuru Kenyatta and William Ruto as President-elect and Deputy President-elect, alleging widespread electoral irregularities including unauthorized access to the IEBC's IT systems, failure to transmit results through a public portal, discrepancies in Forms 34A and 34B, and refusal to provide a public audit of the register. The 1st respondent (IEBC) and the 3rd and 4th respondents opposed, contending that no irregularity affected the outcome. The court consolidated Petition No. 4 of 2017 with the main petition. After extensive evidentiary and legal analysis, the court found that the IEBC failed to transmit results through the public portal as required by Section 39(1)(c) of the Elections Act, and that the announced results were not verified against Forms 34A and 34B at all polling stations, rendering the election non-compliant with the Constitution. Applying the standard that an election is only invalidated where irregularities affect the results, the court invalidated the election and ordered a fresh election within 60 days. Costs were left to each party.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the August 8, 2017 presidential election was conducted in accordance with the Constitution and the applicable electoral laws
  2. 2.Whether the declared results were invalid or irregularities committed affected the result

Key legal issues

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01

Whether the presidential election was conducted in accordance with the Constitution and applicable laws

Holding

No; IEBC failed to conduct the election in accordance with the Constitution and applicable electoral laws

Reasoning

IEBC failed to comply with Section 39(1)(c) of the Elections Act by not transmitting and making available to the public Forms 34A and 34B through a public portal. The announced results were not verified against those forms at all polling stations. This failure renders the election non-compliant with the Constitution and electoral laws, warranting invalidation.

02

Whether electoral irregularities invalidate an election

Holding

Only if they affect the results

Reasoning

The court adopted a high bar for invalidation. Not every electoral irregularity or illegality invalidates an election; it must be shown that the irregularities affected the results of the election. This is consistent with precedents such as Joho and Wavinya Ndeti.

Legal principles established

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  • Where the announced results are not verified against theForms 34A and 34B at all polling stations, an election is not conducted in accordance with the Constitution
  • Invalidation of a presidential election on electoral irregularities is a high bar; they must affect the results

Court orders

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  1. 1.Declaration that the presidential election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable election laws and was invalid
  2. 2.Declaration that the 3rd and 4th respondents were not validly declared President-elect and Deputy President-elect
  3. 3.Order that IEBC organizes and conducts fresh presidential election in accordance with Article 140(3)(b)
  4. 4.Referral to DPP to investigate and prosecute IEBC officials found to have committed electoral offences

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
Philomena Mbete MwiluDCJ
Currently serving
majority

Wrote the judgment

PW
majority

Wrote the judgment

Njoki Susanna Ndungu
Njoki Susanna NdunguSCJ
Currently serving
majority

Wrote the judgment

Isaac Lenaola
Isaac LenaolaSCJ
Currently serving
majority

Wrote the judgment

LA
majority

Wrote the judgment

On appeal from
null
null
Jurisdiction invoked
Article 140(1),(2)&(3) of the Constitution of Kenya 2010
Consolidated with
Presidential Election Petition No. 4 of 2017 (Harold Sakwa & Another)

Relief refused

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Costs of the consolidated petition and the counter-petition

The court directed each party to bear its own costs

Costs

Each party to bear its own costs of the consolidated petition and the counter-petition

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we are unable to declare victory for the Petitioners and/or the voters in whose favour they were cast and it is the option of the less of two evils
Form of declaration
announced results are not verified against theForms 34A and 34B at all polling stations in accordance with Section 39 of the Elections Act
Non-compliance with results transmission
We find that it is not enough to invalidate an election on the basis of electoral irregularities unless they affect the results
Standard for invalidation
It is so ordered
p. 3Disposition

Issues in the judgment

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minor

3rd and 4th respondents' roles as candidates not fully aligned in party structure description

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musau v Musau & another (Environment & Land Case 97 of 2018) [2025] KEELC 3602 (KLR)", Case Analysis (2017). Supreme Court of Kenya at Nairobi, Presidential Election Petition No. 1 of 2017 (with Supreme Court Petition No. 4 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3602/eng@2025-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.