High Court Upholds IEBC National Tallying of Presidential Results

The High Court has dismissed a petition by Busia Senator Okiya Omtatah challenging the constitutionality of national tallying and verification of presidential election results, upholding the legal framework that allows the Independent Electoral and Boundaries Commission (IEBC) to aggregate and verify results at the national level.

The judgment, delivered on Tuesday, September 22, 2026, upheld Section 39(1C) 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 tallying centre.

Omtatah had argued that the Constitution places the primary and final responsibility for tallying, verifying and declaring presidential results at the constituency level.

He had sought orders barring the IEBC from re-tallying or re-verifying presidential results after they had been announced by constituency returning officers.

Court upholds national aggregation

The court found that national aggregation is necessary because of the constitutional threshold a presidential candidate must meet to be declared elected.

Under Article 138(4) of the Constitution, a presidential candidate must receive more than half of all votes cast nationally and at least 25 per cent of the votes cast in more than half of Kenya's counties.

The judges noted that the dual threshold cannot be established solely at constituency or county level, making a national aggregation and verification process necessary.

“A national aggregation and confirmation exercise is accordingly not an arbitrary extra burden imposed on presidential candidates or voters,” the court held, describing the process as a “necessary and rational corollary” of the constitutional requirements for election as president.

The ruling leaves the IEBC's national tallying framework intact ahead of the 2027 General Election. The legality of the national tallying centre has become a significant subject of debate as political parties and electoral stakeholders prepare for the next presidential contest.

Court rejects discrimination argument

The court also dismissed arguments that national tallying amounted to unjustified differential treatment contrary to Article 27 of the Constitution.

Omtatah had challenged the additional national-level process and sought to have the relevant provisions of the Elections Act and election regulations declared unconstitutional.

The judges, however, declined to strike down Sections 39(1C) and 39(1G) of the Elections Act and Regulation 83 in their entirety.

The court found that while Omtatah had established a case concerning certain questions surrounding the finality of constituency results, several other constitutional claims did not meet the required evidentiary threshold.

Polling-station results remain key

On discrepancies between electronically transmitted results and physical results presented from polling stations, the court held that the result verified and declared at the respective polling station would prevail.

The judges also rejected claims relating to other aspects of the electoral process, including Article 35, ballot reconciliation, government timelines and some of the arguments based on Article 27.

The court said those claims largely consisted of general assertions and references to constitutional provisions without demonstrating an actual or imminent constitutional violation.

“These claims proceed largely by way of general assertion and invocation of constitutional provisions without the requisite nexus to a demonstrated or imminent violation,” the court said.

Parliament urged to review electoral laws

Although the petition was dismissed, the court urged Parliament to consider reforms to Kenya's electoral laws ahead of the 2027 General Election.

In making the recommendation, the court invoked philosopher John Rawls' concept of the “veil of ignorance”, which calls for rules to be designed without knowing in advance who will benefit from them.

The judges said electoral laws should be framed in a manner that serves the broader interests of Kenyans rather than the “narrow, temporal and variable goals” of the political class.

The court's ruling comes as debate over the role of the national tallying centre intensifies ahead of the 2027 election. Omtatah and other political actors had argued that presidential results should be considered final at constituency level, while supporters of the existing system maintained that national aggregation is necessary to establish whether a candidate has met the constitutional requirements for election.

The High Court's decision leaves the existing national aggregation and verification framework in place as Kenya moves towards the 2027 General Election.