The Judiciary. Photo: Courtesy of The Platform.

From 1992 to 2022: Legal procedure for resolving poll disputes

Kenyans are increasingly becoming litigious and 2022 cases are certainly not the last.

Editor’s note: We first updated this explainer on September 7, 2022, to cover an August 30 court ruling, which consolidated seven cases and dismissed two. The second update was on September 27, adding the detailed Supreme Court’s judgment.

Eight cases were filed on August 22, 2022, at the Supreme Court disputing the results of the presidential election.

There was one petition that wanted the election upheld.

The Independent Electoral and Boundaries Commission (IEBC) Chairman, Wafula Chebukati, on August 15, 2022, called the election in favour of Hon. William Ruto. He said Ruto garnered 7,176,141 votes, 50.49 per cent of the total ballots cast.

Hon. Raila Odinga emerged second with 6,942,930 votes (48.85 per cent), Chebukati said.

The other two presidential contestants, George Wajackoyah and David Mwaure, amassed 61,969 votes (0.44 per cent), and 31,987 votes (0.23 per cent), respectively.

On August 30, during a pre-trial conference, the court consolidated seven cases that wanted the election nullified. The court dismissed one suit that wanted the poll upheld and another that sought its nullification.

On September 5, the court upheld Ruto’s victory. Ruto and his deputy, Rigathi Gachagua, took an oath of office on September 13.

Read the presidential election petitions judgment here.

Below are the timelines for presidential election petitions, according to the law. We have also documented the history of past suits, starting with the first one filed in 1992.

Presidential election petition timelines

Article 140 (1) of the Constitution of Kenya grants the right to any person to challenge the presidential election result within seven days from the date of its declaration. IEBC declared the results on August 15. Therefore, the deadline for petitioning was August 22. But Rule 7(3) of the Supreme Court (Presidential Election Petition) Rules, 2017 says that if the petition is filed on the last day, it must be before 2 pm. Nine petitions had been filed by the 2 pm deadline on August 22.

The petitioners had 24 hours after filing the petition to serve the respondents, who included Ruto, IEBC and Chebukati. Others were the six electoral agency commissioners: Juliana Cherera, Boya Molu, Abdi Guliye, Justus Nyang’aya, Francis Wanderi, and Irene Massit.

The respondents had four days starting August 23 to file and serve their responses. The deadline was August 27. The petitioners then had 24 hours to file and serve their rejoinder, with a closing date of August 28.

Parties had to make interlocutory applications by August 29 after response to the petition. These submissions were replied to within a day. And its deadline was August 30.

By August 31, several third parties wishing to get admission as a friend of the court—or amicus curiae—had filed and served their application. An amici curia is a person or a group not a party to a legal case but has an interest in the matter. They assist the court by giving information or advice relating to the law and facts of the subject.

The Court had a deadline of August 30, which is eight days from the date of filing the petition, to hold a pre-trial conference. A pre-trial conference is an informal setting for all parties and judges to identify agreeable facts or those in dispute and clarify any issues between parties. On this day, the court consolidated seven cases and dismissed two.

The hearing began immediately thereafter.

The Supreme Court rendered its decision on September 5, which was 14 days from the date the petitions got filed. Due to the tight schedule, the court chose to give a summary judgment within this time and will follow with more thorough decisions from each of the seven judges.

The Court was headed by Chief Justice Martha Koome and deputized by Philomena Mwilu. William Ouko, Njoki Ndung’u, Isaac Lenaola, Smokin Wanjala, and Mohammed Ibrahim are the other judges who rendered a verdict on the cases.

The judges, in a unanimous judgment, declared the election valid, and Ruto was sworn in on the first Tuesday following the seventh day after the decision’s date. This was on September 13. If the court would have determined the election was invalid, IEBC would have conducted a fresh presidential poll within 60 days after the determination.

Lead petitioners at a glance

Raila and Martha Karua were co-petitioners in the first case. They ran against Ruto and his deputy, Gachagua.

Khelef Khalifa, George Osewe, Ruth Mumbi and Grace Kamau sued jointly in the second petition.

John Kamau went alone in the third suit.

Youth Advocacy Africa and Peter Kirika filed the fourth case.

Rueben Kigame lodged the fifth petition but the court rejected it.

Okiya Omtata, Nyakima Gisebe, Victor Okuna, and John Maina made the sixth complaint.

Juliah Chege, Joseph Ndonga and Simon Njenga filed the seventh petition, while David Ngari lodged the eighth.

The ninth case was filed by former legislators, Moses Kuria and Geoffrey Muturi. They were questioning the conduct of the Opposition during the tallying process, and they wanted election results upheld. The court struck out this case.

Raila is a former prime minister. Since 1997, he has fought five times to be the president. Martha is an ex-Justice Minister, legislator, and a 2013 presidential candidate.

Khalifa is the chairman of the board of directors at Muslims for Human Rights (Muhuri). He has challenged the presidential election results twice—first in 2017 against outgoing President Uhuru Kenyatta.

Kigame wanted to vie for the presidency in 2022 but failed to get clearance from the electoral body. He sued IEBC to include him on the ballot. The commission moved to the Court of Appeal and got temporary orders suspending the lower court’s decision.

Activist Omtatah is not a lawyer but has filed several public interest cases. It is his first presidential election petition directly challenging the results. In 2017, his Supreme Court case to stop the repeat presidential election was unsuccessful.

Respondents

Ruto was a member of parliament from 1997 up to 2013 when he got elected alongside Uhuru and served as the Deputy President until the 2022 general election.

The Election Commission of Kenya (ECK) came to the fore during the reintroduction of multipartism, managing successive general and by-elections from 1992 to 2007. After the 2007 post-election violence, ECK was disbanded and replaced with the Interim Independent Electoral Commission (IIEC), which delivered the 2010 constitution. IIEC then transitioned to IEBC, now responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution.

Chebukati, the chairman of IEBC, was sworn into office on January 20, 2017. That year’s general election was his first.

The six commissioners who were also sued, are Juliana Cherera, Boya Molu, Abdi Guliye, Justus Nyang’aya, Francis Wanderi, and Irene Massit. Molu and Guliye came into office in January 20, 2017. On September 1, 2021, President Uhuru gazetted Cherera, Nyang’aya, Wanderi and Massit. They replaced former IEBC Vice-Chairperson Consolata Nkatha, commissioners Margaret Mwachanya, Paul Kurgat and Roselyn Akombe, who quit office.

History of presidential petitions

The nine presidential election petitions are not the first and certainly cannot be the last, as Kenyans are increasingly becoming litigious.

Kenya witnessed similar cases after the general elections of 1992, 1997, 2013 and 2017.

Six petitions were filed in High Court in 1992 after the late President Daniel Arap Moi won the poll. Court threw out five cases on procedural grounds, even before their hearings commenced. Kenneth Matiba’s case was the only one heard, but the court later dismissed it because he did not sign the petition himself, as required by law at the time. Matiba suffered a stroke during his dentition and could not append his signature. His wife, Edith, held the Power of Attorney and signed the document on his behalf.

In 1997, Moi’s win was again challenged by Mwai Kibaki, Kijana Wamalwa and Raila. At that moment, the law required petitioners to serve respondents physically. The three failed, arguing that process servers could not serve Moi inside State House. The court enforced the law and dismissed the case.

The 2013 petitions alleged massive electoral fraud and malpractices that made Uhuru and Ruto win the presidency. Raila and rights activists were among the litigants at the Supreme Court. They lost the case, with judges saying the election complied with the law.

However, the Apex Court, in a historic decision and a first in Africa, nullified the 2017 reelection of Uhuru and Ruto, citing illegalities and irregularities. The National Super Alliance (Nasa) presidential candidate and running mate, Raila and Kalonzo Musyoka, respectively, were the main petitioners. The court ordered a fresh vote in 60 days, but Nasa boycotted. Uhuru won the fresh election, which was contested again by former legislator Harun Mwau, the Institute for Democratic Governance, and activists Khalifa and Njojo Mue. The court upheld Kenyatta and Ruto’s reelection.

Read the 2022 presidential election petitions and affidavits: