Odinga & another v Independent Electoral and Boundaries Commission & 6 others
The bottom line
#IEBC must use original polling station forms (34A) to declare presidential results, not corrected aggregate forms.
What this practically means
#The Supreme Court clarified that when declaring presidential election results, the IEBC Chairperson must rely on the original polling station results (Form 34A) as the primary document. Form 34B is just a summary of those forms. If there are errors in Form 34B, the IEBC cannot fix them—they must point out the discrepancies and let an election court decide. This ensures transparency and prevents tampering with results.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to hear and determine the application for clarification.
- 2.Which results as between the tallies contained in Forms 34B and the totals of Forms 34A the 2nd respondent should use in declaring the results of the presidential election.
- 3.Whether the 1st and 2nd respondents can correct errors identified in Forms 34B and/or amend the Forms 34B where the same differ with results contained in the relevant Forms 34A after the verification exercise.
Key legal issues
#Whether the Supreme Court has jurisdiction to clarify its own judgment after delivery.
The Court held that while Section 21(4) of the Supreme Court Act does not confer jurisdiction to sit on appeal over its own judgments, the Court may exercise its inherent powers to clarify its judgment where there is great public interest and to avert the danger of an impression being created that there exists an ambiguity.
The Court noted that the application was unique and not an appeal or advisory opinion. While Section 21(4) only allows correction of clerical errors, the Court invoked its inherent powers due to the immense public interest in the presidential election judgment. The Court distinguished this from a previous application by the 1st interested party which sought interpretation of a constitutional provision not in issue in the main petition.
Which results should the 2nd respondent use in declaring the presidential election results: Forms 34A or Forms 34B?
The Court held that the 2nd respondent must use the results in Forms 34A as the primary document. Form 34B is the aggregate of Forms 34A, and the verification exercise is meant to establish accuracy. The 2nd respondent must bring any inaccuracies to public attention even as he declares results from Forms 34B.
The Court found the question mischievous or informed by lack of understanding. It explained that Form 34B is the aggregate of Forms 34A, and the Constituency Returning Officer aggregates Forms 34A into Form 34B. The verification exercise is meant to establish accuracy, and the 2nd respondent must bring inaccuracies to public attention even as he declares results from Forms 34B.
Whether the 1st and 2nd respondents can correct errors identified in Forms 34B where they differ with Forms 34A.
The Court held that the 1st and 2nd respondents cannot correct errors identified in Forms 34B or amend the Forms 34B where they differ with results in Forms 34A. Their duty is to expose such discrepancies and leave resolution to an election court.
The Court relied on the Court of Appeal decision in Maina Kiai which barred the respondents from varying, altering, or changing results under the guise of verifying. The Court reiterated that the respondents' role is to expose discrepancies, not correct them, and the effect of inaccuracies on an election depends on their gravity, to be determined by an election court.
Legal principles established
#- The Supreme Court can use its inherent powers to clarify its own judgments when there is great public interest.
- Form 34A (polling station results) is the primary document for declaring presidential election results, not Form 34B.
- The IEBC cannot correct errors in Form 34B or change it to match Form 34A; they must expose discrepancies.
- Any unresolved discrepancies between Forms 34A and 34B must be left for an election court to decide.
- The verification duty of IEBC is a constitutional requirement to ensure accuracy and prevent fraud.
Court orders
#- 1.The Court assumed jurisdiction in exercise of its inherent powers to determine the application.
- 2.The Court clarified that the 2nd respondent must use the results in Forms 34A as the primary document in declaring the presidential election results.
- 3.The Court clarified that the 1st and 2nd respondents cannot correct errors identified in Forms 34B or amend the Forms 34B where they differ with results in Forms 34A; they must expose such discrepancies and leave resolution to an election court.
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Justice Ojwang agreed with the majority's overall outcome on jurisdiction but took a differing course of explication. He held that the Court's jurisdiction to entertain the application was beyond doubt, and that Form 34B as a basis of declaration is practically sound, but the 2nd respondent ought to take responsibility for assessing the relevance of any discrepancy in the first place, and the result should be declared, save that an aggrieved party may move the Supreme Court on the basis of clear evidence.
The questions arising in the instant application speak for themselves; and I have no doubt that the Court ought to have spoken with distinct clarity, if indeed, the respondents were ever to discharge the obligations placed upon them. The Court's jurisdiction, therefore, in entertaining the application, is beyond doubt.p. 19
- On appeal from
- Supreme Court of Kenya
- Presidential Petition No. 1 of 2017
- Jurisdiction invoked
- Inherent powers of the Supreme Court; Section 21(4) of the Supreme Court Act
Relief refused
#The application to strike out the Law Society of Kenya's submissions
The Court did not expressly rule on the preliminary objection; it guided the amicus to limit submissions to the interpretation of Section 83 of the Elections Act.
Costs
No order as to costs was made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In exercise of the inherent powers of this Court, we shall therefore proceed to determine whether there is any matter to be clarified, and if so, to what extent.
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.
It is therefore the duty of the 2nd respondent 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.
This opinion represents our understanding and answer to the two questions posed before us by the 2nd respondent. Orders accordingly.
Key timeline
#Practical implications
#Clarify election petition strategy
When challenging presidential election results, focus on discrepancies between Forms 34A and 34B. The IEBC cannot correct these errors—they must be exposed. Your petition should argue that unresolved discrepancies undermine the accuracy of declared results, and the court must resolve them. This ruling strengthens challenges based on form mismatches.
Understand electoral stability risks
Businesses relying on political stability should note that this ruling reinforces transparency in election results. If discrepancies arise, they are not fixed behind closed doors but aired in court. This reduces the risk of contested outcomes leading to prolonged uncertainty. Plan for potential delays in result declaration if verification reveals errors.
Know your vote's verification path
Your vote is recorded on Form 34A at the polling station. That form is the gold standard for declaring presidential results. If the IEBC tries to use a corrected summary (Form 34B) without explaining differences, they are acting unlawfully. You can challenge such results in an election court, ensuring your vote is not altered after you cast it.
Frequently asked questions
#What is the difference between Form 34A and Form 34B in Kenya's elections?+
Form 34A is the official result from each polling station, signed by agents and the presiding officer. Form 34B is a summary of all Form 34As in a constituency. The Supreme Court ruled that Form 34A is the primary document for declaring presidential results, not Form 34B.
Can the IEBC correct errors in election results after declaration in Kenya?+
No. The Supreme Court clarified that the IEBC cannot correct errors in Form 34B or change it to match Form 34A. If there are discrepancies, the IEBC must expose them and leave resolution to an election court. This prevents tampering with results after they are announced.
What happens if Form 34A and Form 34B don't match in a Kenyan election?+
The IEBC must declare results using Form 34A as the primary document. They cannot fix the mismatch in Form 34B. Instead, they must publicly disclose the discrepancy and let an election court decide the impact. This ensures transparency and accountability in the electoral process.
Does the Supreme Court have power to clarify its own judgments in Kenya?+
Yes, but only in limited circumstances. While the Supreme Court Act only allows correction of clerical errors, the Court can use its inherent powers to clarify a judgment when there is great public interest and to prevent confusion. This was done in the 2017 presidential election case.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Stanbic Bank Kenya Ltd v Santowels Ltd[2025] KESC 3 (KLR)14 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Odinga & another v Independent Electoral and Boundaries Commission & 6 others", Case Analysis (2017). Election Petition 1 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/52/eng@2017-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.