Odinga & another v Independent Electoral and Boundaries Commission & 2 others
David Kenani Maraga
Philomena Mbete Mwilu
Jackton Boma Ojwang
Smokin Charles Wanjala
Njoki Susanna Ndungu
Isaac LenaolaThe bottom line
#Kenya's Supreme Court nullified the 2017 presidential election due to illegalities and constitutional violations.
What this practically means
#The Supreme Court of Kenya declared the August 8, 2017 presidential election invalid. It found that the Independent Electoral and Boundaries Commission (IEBC) failed to conduct the election according to the Constitution and election laws. The court ordered a fresh election within 60 days. This decision was based on significant irregularities, including failure to electronically transmit results from polling stations and declaring results without proper verification.
Executive summary
#Key legal issues
#What is the correct interpretation of section 83 of the Elections Act?
The two limbs of section 83 are disjunctive. A petitioner can void an election by proving either that the election was not conducted in accordance with the principles laid down in the Constitution and written law, OR that non-compliance affected the result.
The court analyzed the wording of section 83, noting the use of 'or' instead of 'and' as in the English equivalent. It held that the provision must be read in light of constitutional principles in Articles 81 and 86. The court rejected the conjunctive interpretation that would require a petitioner to prove both limbs. It stated that to be voided under the first limb, the election should be a 'sham or travesty of an election'. The court also held that the word 'substantially' can be inferred from the phrase 'if it appears'.
What is the meaning of 'votes cast' in Article 138(4) of the Constitution for the purpose of determining the 50%+1 threshold?
The phrase 'votes cast' means only valid votes, and rejected votes are not to be included in the computation.
The court distinguished between a 'ballot paper' (the instrument) and a 'vote' (the expression of preference). It held that a ballot paper does not become a vote by merely being inserted into the ballot box if it is later rejected. The court relied on comparative jurisprudence from Australia, New Zealand, Canada, and others, and maintained its decision in the 2013 Raila Odinga case.
What is the applicable standard of proof in a presidential election petition?
The standard of proof is higher than a balance of probabilities but lower than beyond reasonable doubt. Where criminal allegations are made, the standard is beyond reasonable doubt.
The court rejected the petitioners' argument that only two standards of proof exist. It held that election petitions are sui generis and involve the entire electorate, justifying a higher standard. The court maintained its decision in the 2013 Raila Odinga case.
Did the failure to electronically transmit all Forms 34A from polling stations to the National Tallying Centre violate the Constitution and the law?
Yes. The failure to electronically transmit all Forms 34A as required by section 39(1C) of the Elections Act, and the declaration of results based solely on Forms 34B without verification against Forms 34A, violated Articles 81(e), 86, and 138(3)(c) of the Constitution.
The court found that the 2nd respondent declared the results before receiving all Forms 34A, and that the 1st respondent failed to electronically transmit results from many polling stations. The court rejected the argument that the Court of Appeal decision in Maina Kiai justified this non-compliance. The court held that the failure to verify the results against the primary documents (Forms 34A) rendered the election unverifiable and not transparent.
Legal principles established
#- An election can be voided if it substantially violates constitutional principles, even without proving the result was affected.
- The phrase 'votes cast' in the Constitution means only valid votes, excluding rejected ballot papers.
- The standard of proof in election petitions is higher than balance of probabilities but lower than beyond reasonable doubt.
- Failure to electronically transmit polling station results as required by law violates constitutional principles of transparency.
- Declaring presidential results before receiving and verifying all primary forms from polling stations is illegal.
- The two conditions in Section 83 of the Elections Act are separate; proving either one is enough to void an election.
Court orders
#- 1.A declaration is hereby issued that the Presidential Election held on August 8, 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void.
- 2.A declaration is hereby issued that the irregularities and illegalities in the Presidential election of August 8, 2017 were substantial and significant that they affected the integrity of the election, the results not- withstanding.
- 3.A declaration is hereby issued that the 3rd respondent was not validly declared as the President elect and that the declaration is invalid, null and void.
- 4.An order is hereby issued directing the 1st respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of the determination of September 1, 2017 under article 140(3) of the Constitution.
- Jurisdiction invoked
- Article 163(3)(a) of the Constitution as read with Article 140
Key timeline
#Practical implications
#Disjunctive test for election petitions
Lawyers can now challenge elections by proving either substantial constitutional violations OR that non-compliance affected the result, not both. This lowers the burden for petitioners. When drafting petitions, focus on gathering evidence of systemic failures in election conduct, not just vote manipulation. The court's interpretation of Section 83 of the Elections Act is now binding.
Election uncertainty affects investment
Your vote must be counted properly
Individuals now have stronger grounds to challenge elections if the electoral body fails to follow transparency rules, like electronically transmitting results. If you witness irregularities at polling stations, report them immediately to agents or the IEBC. The court emphasized that every valid vote matters, and rejected ballots don't dilute the count for the 50%+1 threshold.
Frequently asked questions
#What did the Supreme Court of Kenya decide in the 2017 presidential election petition?+
The court nullified the August 8, 2017 presidential election, declaring the results invalid. It ordered a fresh election within 60 days due to illegalities and constitutional violations by the IEBC.
Why was the 2017 Kenyan presidential election nullified by the Supreme Court?+
The court found that the IEBC failed to electronically transmit all polling station results and declared results without verifying them against primary forms. These failures violated constitutional principles of transparency and integrity.
What is the standard of proof in Kenyan election petitions?+
The standard is higher than balance of probabilities but lower than beyond reasonable doubt. If criminal allegations are made, the standard is beyond reasonable doubt. This applies to presidential and other election petitions.
Does 'votes cast' in Kenya's Constitution include rejected ballot papers?+
No. The Supreme Court ruled that 'votes cast' means only valid votes. Rejected ballot papers are not counted when determining if a candidate got 50%+1 of the votes.
Later judgments citing this (15)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti-Corruption Commission & another v Aboo[2026] KESC 44 (KLR)19 Jun 2026followed
- Muriithi v Attorney General (Civil Appeal 435 of 2019) [2026] KECA 499 (KLR)[2026] KECA 499 (KLR)13 Mar 2026
- Thairu v Gatune (Civil Application E613 of 2025) [2026] KECA 483 (KLR)[2026] KECA 483 (KLR)6 Mar 2026applied
- Njunguna v Ngetich (Environment and Land Case 43 of 2020) [2025] KEELC 8492 (KLR)[2025] KEELC 8492 (KLR)4 Dec 2025applied
- Abdulrahim (Suing on Behalf of the Estate of Habiba Sheikh Abdirahim - Deceased) v Ali & another (Environment and Land Appeal 4 of 2024) [2025] KEELC 6588 (KLR)[2025] KEELC 6588 (KLR)18 Sept 2025
- Association & another v Nairobi City County & 6 others (Environment and Planning Petition E038 of 2024) [2025] KEELC 5942 (KLR)[2025] KEELC 5942 (KLR)21 Aug 2025applied
- Maina v Bwana (Civil Appeal E009 of 2022) [2025] KECA 1388 (KLR)[2025] KECA 1388 (KLR)31 Jul 2025
- Maina v Bwana (Civil Appeal E009 of 2022) [2025] KECA 1388 (KLR)[2025] KECA 1388 (KLR)31 Jul 2025
- Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2025] KEELC 5877 (KLR)[2025] KEELC 5877 (KLR)23 Jul 2025applied
- Nyaga & 19 others (Suing on Behalf of the 150 Members of Kismayu Farmers Company) v Ngunyi & 6 others (Environment & Land Petition 17 of 2022) [2025] KEELC 3980 (KLR)[2025] KEELC 3980 (KLR)7 May 2025applied
- Sehmi & another v Tarabana Company Limited & 5 others[2025] KESC 21 (KLR)11 Apr 2025
- Kental Enterprises Ltd v Attorney General & 4 others (Petition 2 of 2019) [2025] KEELC 1470 (KLR)[2025] KEELC 1470 (KLR)24 Mar 2025
- Kiplagat v Yatich & another (Environment and Land Appeal E061 of 2024) [2025] KEELC 1106 (KLR)[2025] KEELC 1106 (KLR)6 Mar 2025applied
- Hongo v Governor Kisumu County & 5 others (Petition E020 of 2024) [2025] KEELRC 546 (KLR)[2025] KEELRC 546 (KLR)27 Feb 2025
- Sukari Industries Ltd & 3 others v Ongoro & 3 others (Cause E067 of 2024) [2025] KEELRC 96 (KLR)[2025] KEELRC 96 (KLR)27 Jan 2025
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2017). Presidential Election Petition 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/42/eng@2017-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.