Inside petitions seeking to invalidate Kenya’s presidential election results

Saturday August 27 2022
Election petition

Azimio La Umoja One Kenya Alliance leaders led by Raila Odinga (centre) file a petition challenging presidential results at the Milimani Courts in Nairobi. PHOTO | FILE


Kenyans and the region will wait a little longer to confirm the new president, weeks after the country held polls on August 9, thanks to eight petitions filed this week at the Supreme Court challenging the validity of the declaration of William Ruto as president-elect.

Dr Ruto and the Independent Electoral and Boundaries Commission (IEBC) on Friday filed their separate responses, setting the stage for a battle royale at the apex court.

Read: What are Forms 34A and 34B?

Those challenging Dr Ruto’s win led by Mr Odinga and members of the civil society have raised various allegations that the tally had involved "criminality," “fraud” and election irregularities.

The other petitioners are John Njoroge Kamau, four activists led by Khelef Khalif, Youth Advocacy Africa and Peter Kirika, David Kariuki Ngari, Busia Senator Okiya Omtatah and citizens Juliah Nyokabi Chege and two others. Another petition was filed by Reuben Kigame, who tried to contest but was locked out of the race.

Read: Supreme Court ruling signals new order for Kenyan politics


Raila Odinga

He claims that the election was marred by irregularities such as manipulation of figures and that agents of his sponsoring party, Azimio la Umoja One Kenya, were denied access to polling stations.

In the petition filed by Mr Odinga and his running-mate Martha Karua, a former Cabinet Minister for Justice and a long-standing member of parliament, they allege that the election process was manipulated through technology.

They claim that the declaration of Dr Ruto as the winner of the polls is an “attempt establish a government otherwise than in compliance with the Constitution”. In their 72-page petition, the two are seeking various, including an order for inspection of IEBC servers and invalidation of Dr Ruto’s win.

“The said result declared by Mr Chebukati is fraudulent, thus further invalid and null and void because William Ruto did not meet or attain the constitutional threshold of 50 per cent plus one of all the votes cast in the election,” they add. Another main allegation is that the 2022 presidential election was rigged way before August 9 through 21 individuals —19 foreigners and two Kenyans —who had access to the electoral commission’s network systems and database.

Read: Senior counsel showdown: Top legal minds face off in Kenya presidential poll petition

Okiya Omtatah and three others

Mr Omtatah challenged the presidential election results on grounds that none of the four presidential candidates (William Ruto, Raila Odinga, George Wajackoya and Waihiga Mwaure) garnered 50 per cent plus one vote as required by the Constitution.

Mr Omtatah says an analysis reveals that no candidate garnered 50 per cent plus one vote as required by the Constitution because the electoral commission did not factor in the untallied votes of people who were identified manually on polling day. The activist said there was no basis for the IEBC chairman to declare any candidate as duly elected president. Mr Omtatah alleges that Mr Chebukati did not factor in voters who voted manually, who total at least 140,028. He also wants an order quashing the results of the presidential elections announced by the chairman.

Also read: Explainer: What you need to know about Kenya's election battle in Supreme Court

He sued together with Mr Nyakina Wyclife Gisebe, Victor Okuna and John Maina (suing as executive director for Centre for Diaspora Affairs.

Khelef Khalifa and three others

He claims that the just concluded presidential election was badly conducted, administered and managed by IEBC.

Together with his co-petitioners George Osewe, Ruth Mumbi and Grace Kamau, they also claim that the chair erred in excluding the other commissioners — vice chair Juliana Cherera, Francis Wanderi, Irene Masit and Justus Nyang'aya, Abdi Guliye and Boya Molu.

They argue that Mr Chebukati ought to have involved all commissioners and their exclusion makes the declaration made by Mr Chebukati illegal.

Also read: Explainer: What next after William Ruto-Raila Odinga Kenya election results stalemate

The four activists also claim that the electoral commission failed to comply with election principles and regulations during the polls. They want the court to declare that Dr Ruto was not validly declared as the president-elect and that the same is invalid null and void. As a result, they want the Supreme Court to direct the Commission to organise a repeat of the presidential election.

They also want a declaration that the Commission committed election irregularities, illegalities in the presidential elections and malpractices and a report to that effect be sent to the Director of Public Prosecutions.

In addition, the activists want the Supreme court to order IEBC chairman to avail all the materials including the electronic documents, devices and equipment for the presidential election.

Juliah Nyokabi and two others

In the court papers she describes herself as a citizen and a voter. She filed the petition alongside two other voters, Joseph Mutua Ndonga and Simon Mwaura Njenga. The thrust of their case is that the electoral commission violated electoral laws in the countdown to the general election and during the presidential election. Through lawyer Kibe Mungai, they allege that over 700,000 people were unlawfully excluded by the failure of the Commission to make provision for voting under Special Voting Regulations.

Also read: How Kenya presidential petitions have changed the polls agency

They claim that the IEBC violated one of the voting regulations on special needs. The court papers indicate that as a result of the alleged failure, at least 500,000 citizens falling under the said category, were deprived of their right to vote. They also argue that at least 180,000 members of the security forces were engaged in guarding the elections, hence they themselves were unable to vote and negated their right to choose leaders. They claim that technology deployed by the Commission was opaque, unaccountable and not transparent.

John Njoroge Kamau

He is also a voter and describes himself as a public spirited individual committed to the promotion of good governance and democracy in Kenya. In his petition, Mr Kamau claims the 2022 presidential election was not conducted in accordance with the Constitution and the applicable law, thereby rendering the declared result invalid, null and void. He argues that the Commission’s chairman and the commissioners issued contradictory press statements.

Also read: Ruto faces tough battle to push agenda in Parliament

He also argues that it was unlawful or the Chairman to postpone governorship and parliamentary elections in some areas of the country such as Mombasa and Kakamega counties.

He claims Dr Ruto and his running mate Rigathi Gachagua were not validly declared as President and Deputy President.

Youth Advocacy Africa and Peter Kirika

The non-governmental organization and Mr Kirika lodged their petition through City lawyer Njoki Mboce claiming that the Commission failed to comply with various election regulations. They have cited Regulation 69(1)(d) of the Elections (General) Regulations, 2012, which requires election officials to cross out the name of every voter from the printed copy register once the image of the voter has been identified in the Kiems kit.

They also claim there was discrepancy between the voter turnout percentages announced by the chairman during the tallying process and the turn out announced after the tally.

It is claimed that Mr Chebukati had said the turnout was at 65.4 per cent but based on the final results it changed to 64.77 per cent. They also claim IEBC did not observe integrity rules by allowing candidates accused of engaging in fraudulent activities to participate in the presidential poll.

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Reuben Kigame

His petition is based on the decision of the electoral commission to kick him out of the presidential race over failure to meet the set conditions. He wants the Supreme Court to reject the presidential elections and order a fresh poll.

David Kariuki Ngari

He claims the IEBC chairman departed from the Constitution and legal and settled practical process of verifying and tallying results.

He also claims the chairman announced the final results without tallying and verifying results from 28 constituencies. Mr Ngari says 26 of the said constituencies had a total of 1,166,690 votes representing 8.21 per cent of the total valid votes.