Editor's Review

Justice Gregory Mutai upheld the legality of the national tallying centre.

On Tuesday, September 21, the High Court dismissed a petition jointly filed by Busia Senator Okiya Omtatah, DCP Leader Rigathi Gachagua and Wiper Leader Kalonzo Musyoka challenging the legality of a national tallying centre.

Justice Gregory Mutai upheld the legality of the national tallying centre, citing Section 39(1)(c) of the Elections Act and Regulation 83(2) of the Elections (General) Regulations, which provide for the aggregation and verification of presidential results at the national level.

He explained that presidential elections were subject to a unique constitutional threshold which made national tallying necessary.

"The national aggregation and confirmation exercise is accordingly not an arbitrary extra burden imposed on presidential candidates or voters.

"No county level or constituency level vantage point can address compliance with a nationwide 50 plus 1 and 24 county threshold,” the judge ruled.

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A file photo of the Milimani Law Courts

However, he barred the Independent Electoral and Boundaries Commission from altering, cancelling or varying the presidential results from the constituency level.

Justice Mutai further determined that if there is a discrepancy between the constituency results and those from the national tallying centre, then the results declared at the respective polling station should prevail.

He directed  Parliament to take into account the court’s interpretation of Section 39 when considering electoral legislation ahead of the 2027 election.

He further urged lawmakers to approach electoral reforms without knowing which political interests would ultimately benefit from the rules, as held in the “veil of ignorance” theory.

Omtatah had moved to court to seek the abolition of the national tallying centre, stating that it created an additional layer through which results declared at the constituency are subjected to further scrutiny.

Earlier, former Chief Justice David Maraga claimed that the Constitution does not provide for a national tallying centre.

He added that the Constitution does not give the IEBC or its Chairperson authority to retally the results from the polling centres, adding that their role is to declare the results.