Court keeps IEBC national tallying centre but puts hard limits on what can happen there

Kenya will retain a national presidential tallying centre in the 2027 General Election, but the Independent Electoral and Boundaries Commission will not be allowed to alter results already declared and certified at constituency level.

The High Court on Tuesday rejected a petition seeking to scrap national tallying and verification of presidential results, settling an important question about how Kenya's next presidential election will be handled.

Justice Gregory Mutai ruled that the IEBC's national tallying and verification function is constitutional. But he simultaneously drew a firm boundary around that power: national verification cannot become a second opportunity to change constituency results.

The judgment is particularly significant because disputes over the transmission, verification and declaration of presidential results have repeatedly been among the most contentious stages of Kenyan elections.

Busia Senator Okiya Omtatah and other petitioners had challenged provisions of the Elections Act and regulations that allow presidential results to be tallied and verified nationally.

Their argument was that once a constituency returning officer has tallied, verified and declared the presidential result for a constituency, those figures are final. They questioned what the IEBC could legally be "verifying" again at the national centre.

The court agreed with the finality of constituency figures, but not with the argument that this made the national tallying centre unconstitutional.

Justice Mutai distinguished between changing results and aggregating them.

Tallying at the national centre, he found, involves adding constituency figures together to establish national totals. Verification involves checking that the figures being aggregated correspond with those already declared and certified at constituency level.

That means the national centre survives, but its role is more tightly defined.

The IEBC cannot "add, subtract, multiply, divide, cancel or otherwise revise" an individual constituency's figures during national verification, according to the judgment as reported by The Star.

If a constituency result is disputed, the court held, the appropriate route is an election court rather than an administrative alteration at the national tallying centre.

Forms 34A and 34B get greater significance

The judgment also addresses one of the most sensitive questions in electronic results transmission: what happens when digitally transmitted information does not correspond with physical election documents?

Certified Forms 34A and 34B, or the forms that succeed them under future regulations, displayed at constituency tallying centres are to serve as primary reference documents during national aggregation.

Where electronic results and physically delivered records differ, IEBC will have to record the discrepancy, explain how it was resolved and make that information public by the time the final presidential result is declared.

That requirement could become particularly important in 2027.

Electronic transmission can help the public, candidates and IEBC follow results quickly, but Kenya's previous presidential election disputes have demonstrated the importance of determining which documents constitute the authoritative record.

The court has now placed considerable emphasis on the certified constituency documents.

IEBC commissioners must participate collectively

Another important element concerns who conducts national verification.

The court directed that the exercise should be undertaken collectively by the IEBC, with commissioners participating and having access to the underlying information.

Agents and observers should also have real-time access to the same data being used during national tallying and verification.

The ruling therefore creates a chain that is easier to understand.

Votes are counted at polling stations. Constituency results are tallied, verified and declared. Those certified figures then travel into the national aggregation process.

The national centre checks and adds them together.

It cannot rewrite them.

That distinction may become one of the most important procedural safeguards heading into 2027.

The judgment does not eliminate the possibility of election disputes. Neither does it guarantee that disagreements over forms, transmission or tallying will disappear.

What it does is clarify where one important line sits.

The national tallying centre remains.

But the constituency result arriving there is not a draft waiting to be rewritten.