On 1 September 2017, Chief Justice David Maraga read the Supreme Court’s decision on the presidential election held twenty-four days earlier. Four judges had voted to annul the result, while Justices Jackton Ojwang and Njoki Ndung’u dissented. The Court invalidated Uhuru Kenyatta’s declaration as president-elect and ordered IEBC to conduct another election within sixty days. It was the first time a Kenyan court had cancelled a presidential election.
The decision produced an immediate misunderstanding that has survived ever since. Some opposition supporters treated the ruling as proof that Raila Odinga had won. Kenyatta’s supporters accused the judges of discarding millions of valid votes because election officials had mishandled paperwork. Neither account describes the Court’s decision. The majority did not determine who received more votes, found no misconduct by Kenyatta and did not declare Odinga the rightful winner.
IEBC had announced Kenyatta as the winner on 11 August with 8,203,290 votes against Odinga’s 6,762,224. Odinga and his running mate, Kalonzo Musyoka, filed their petition seven days later. They challenged the transmission, verification and declaration of the result, alleging that IEBC had violated Articles 81 and 86 of the Constitution as well as the Elections Act. Article 86 required the commission to use a system that was simple, accurate, verifiable, secure, accountable and transparent.
Those words imposed duties that could be checked against records. Each polling station recorded its presidential result on Form 34A. Constituency returning officers used those forms to prepare Form 34B, while the national tally ended in Form 34C. Section 39 of the Elections Act also required IEBC to transmit the prescribed presidential results electronically from polling stations to constituency and national tallying centers. The petition therefore concerned the documents and electronic records linking votes counted at 40,883 polling stations to the figure announced at Bomas.
The records IEBC would not open
The Court ordered IEBC to provide access to Forms 34A, 34B and 34C, together with specified information from its election technology. The Supreme Court Registrar and court-appointed information technology experts supervised the exercise. According to the majority judgment, IEBC supplied pre-downloaded logs on a hard disk but did not disclose their source. It also failed to provide usable access to critical server logs and the server containing Forms 34A. The judges drew an adverse inference from that failure because the requested records could have supported or disproved the hacking allegations.
Also Read: 2013: When Kenya’s Election Technology Failed on Voting Day
That inference did not amount to a finding that hackers had changed the presidential result. The Court could not inspect records that IEBC had failed to produce in the required manner, so it could not confirm the petitioners’ account of what happened inside the system. The narrower finding was damaging enough: the institution holding the electronic evidence had disobeyed the Court’s access order in areas needed to test the allegations.
The paper records raised a separate problem. During scrutiny, the Registrar examined a random sample of 4,299 Forms 34A. The majority judgment recorded that 481 were carbon copies, 269 lacked stamps, eleven lacked watermarks and forty-six photocopies were unsigned. The same exercise found 189 forms without completed handover sections and 287 without completed takeover sections. Some defects may have had innocent explanations, but the sample showed that IEBC had not handled the prescribed forms consistently.
The majority also found that IEBC could not adequately explain whether it had electronically transmitted every Form 34A as the law required. Three days after declaring the result, the commission still could not supply the petitioners with all the forms they had requested. IEBC argued that the declaration rested on all 290 constituency Forms 34B and the diaspora return. The Court answered that using Forms 34B did not remove the statutory duty to transmit and verify the polling-station forms from which the constituency totals had been compiled.
The legal question that split the bench
The judges then confronted the question that divided the Court: must a petitioner prove that the irregularities changed the numerical winner before an election can be annulled? The majority said no. Section 83 of the Elections Act, read with the Constitution, allowed annulment where an election had failed to comply with constitutional and legal principles, even without proof that a different candidate had received the highest total. Otherwise, IEBC could disregard mandatory procedures whenever the announced margin appeared large enough.
The two dissenting judges rejected that approach. They placed greater weight upon the declared figures and concluded that the petitioners had not shown irregularities substantial enough to overturn Kenyatta’s lead. Their objection remains serious because an election belongs to voters, not to officials or judges, and courts should not cancel millions of ballots for minor administrative mistakes. If every missing stamp or incomplete section could void a national election, losing candidates would search forms for clerical errors instead of proving that voters were miscounted.
Also Read: The 2007 Presidential Election No One Could Prove Who Won
That objection does not rescue IEBC in the 2017 presidential election. The majority judges did not annul the election because one presiding officer forgot a stamp. It considered failures spread across transmission, prescribed forms, verification and compliance with a direct court order. These were the very records through which IEBC was expected to show that the national total votes came from polling-station counts. When the commission could not produce that evidence properly, the Court refused to treat the declared numbers as self-proving.
The judgment has also been abused since the 2017 Supreme Court pronouncement. Politicians now cite it as though every transmission delay, corrected entry or unsigned agent section proves a stolen election. The Court did not establish such a rule for managing election results. An error matters according to what caused it, how widely it occurred, whether officials documented its correction and whether it prevents someone outside IEBC from retracing the result. A corrected arithmetic mistake visible on both versions of a form is not equivalent to a missing polling-station return.
The practical lesson for 2027 is exactly that IEBC must be able to produce the form, transmission record, verification decision and audit log behind every figure used in the presidential declaration. If a court orders access, the commission must provide the live records specified in that order, not selected files copied onto a separate disk. The Supreme Court did not decide who won the vote in August 2017. It decided that IEBC failed to show, through the records required by law, that it produced its declared result lawfully.
This article was written by George Nyongesa, a lecturer in philosophy and logic at the University of Nairobi and Chuka University.
Follow our WhatsApp Channel and X Account for real-time news updates.
