Omtatah's plea for larger bench in electoral cases gets IEBC nod
National
By
Phares Mutembei
| Dec 16, 2025
The Independent Electoral and Boundaries Commission (IEBC) has backed Busia Senator Okiya Omtatah’s plea to have the case seeking to strip the commissioners' powers to re-tally presidential results be heard by more than three Judges.
In its response to Okiya’s application, IEBC lawyer Moses Kipkogei told High Court Judge Bahati Mwamuye that the issues raised separately by Okiya and the united opposition needed more than one Judge to hear and settle.
"I agree with Okiya over the appointment of more than three judges as the case raises novel issues. There is a separate case filed by former Vice President Kalonzo Musyoka, which will be mentioned on Tuesday before you, and it raises similar issues,” said Kipkogei.
In the application, the Senator stated that the case had immense public interest and ought to settle a major issue that is likely to affect Kenya’s electoral system.
According to Okiya, Kenya’s election problem is at the national tallying centre.
He argued that the decision by IEBC to re-tally and re-verify the results announced at the constituencies is the root cause of the unending presidential election disputes in the country.
The Senator filed a fresh case in a push for the electoral body not to touch presidential election cast votes once declared by the constituencies’ returning officers.
Omtatah, in his case, said that the exercise at the national tallying centre is illegal as it amounts to the commissioners and the IEBC chair usurping the powers of the constituencies’ returning officers.
According to him, the work of the national tallying centre should be a simple collation of results from each constituency without modification, verification or alteration.
He argued that Section 39 of the Elections Act, Article 86 and Article 138 of the Constitution, indicate that the results from the constituency level are final and binding.
“The petitioner asserts that the introduction of this redundant verification step creates a contradiction: if the results at the constituency level are final (as per the Constitution), then what exactly is the IEBC verifying at the National Tallying Centre? This duplicative verification process has actually served no purpose other than to open the door for potential manipulation, errors, or inconsistencies that could undermine the integrity of the electoral process in 2013, 2017 and 2022 general elections,” argued Omtatah.
The Senator further argued that the role of the IEBC chair is almost a ceremonial one, as he is only required to announce the total results from the constituencies.
According to him, centralisation of tallying and verification of results violates the finality of results as required by the Constitution.
“The national tallying centre improperly reintroduces a level of discretion and delay into the process of declaring presidential results, contrary to the simple arithmetic requirement of Article 138(4),” he said.
Okiya’s case is the second contest filed against the commission in a bid to ring fence the presidential contest to the constituencies.
In the first case, the United Opposition Coalition leaders Kalonzo Musyoka, Rigathi Gachagua, Fred Matiang’i, Mithika Linturi and Justin Muturi argued that once the results are collated at the polling stations and announced at the constituencies, the national tallying centre ought to adopt the same numbers without alteration or re-tallying.
According to them, re-tallying and re-verifying the results creates an opportunity for potential manipulation.
Their lawyer, Gitobu Imanyara, stated that with the election being one year and eight months away, his clients are pushing for the commission to deliver an accurate and verifiable election.
Imanyara further stated that the practice adopted by the Ethekon Edung-led commission creates confusion on which of the results announced at the constituencies and those at the national tallying centre is final.
“This practice has resulted in immense confusion, created opportunities for manipulation and has been a primary source of litigation in every presidential election cycle. The current legal framework, particularly Section 39 of the Elections Act, is interpreted and applied by the Respondents to permit this parallel verification process. However, this process is not anchored in the specific provisions of the Constitution, which prescribe a clear and linear pathway for the tallying and declaration of results,” argued Imanyara.
According to Imanyara, IEBC has allegedly consistently failed to have the results verified at the constituencies before they are transmitted electronically.
He argued that the results of the election of the Members of the National Assembly and the County Women Representatives are final upon declaration by the constituency returning officer, then the presidential votes count should not undergo further verification or alteration at the national level.
“There exists no rational or justifiable constitutional basis for treating the results of the presidential election differently. The constitutional architecture for elections, as outlined in Article 86, is uniform. The creation of a separate, superior process exclusively for presidential results is an arbitrary and discriminatory practice that lacks a legitimate constitutional objective,” he argued.
It is not the first time that the exercise at Bomas has been in court.
Former IEBC chair Wafula Chebukari in 2017 told the Supreme Court that he wants to powers to correct forms 34B in the event the do not tally with forms 34A.
When his lawyer, Paul Nyamodi, was asked by Supreme Court judge Isaac Lenaola what exactly he wanted the court to order, he said he needed the powers taken away by the Court of Appeal.
According to the lawyer, the chair is a helpless man who can only do nothing but announce figures if they have errors, then wait for the consequences.
“What do you want us to do? You have the baby in your hands, what do you want?” Justice Lenaola asked.
Lawyer Nyamodi replied: “The Court of Appeal, with tremendous respect, took away the powers of the second respondent to correct the forms if they do not add up.”
Also submitting to the court on behalf of the IEBC, lawyer Kamau told the court that there is a likelihood of the country plunging into chaos, just like in 2007, if a winner is not announced.
Lawyer Kamau told a five-judge bench composed of Chief Justice David Maraga (now retired), his deputy Philomena Mwilu and Justices Lenaola, Smokin Wanjala and Jackton Ojwang that if the chairman cannot announce a winner over errors in the forms, then chaos might erupt.
“Arising from the judgment of this honourable court, it is now unclear as to what; as the returning officer for the presidential election; the chairperson ought to do, in view of the clear prohibition of the Court of Appeal in the Maina Kiai case barring the chairperson from varying, confirming, altering, modifying or adjusting the results relayed from to the national tallying centre,” the judges heard.
At the same time, the court heard, it will be very easy for IEBC to face cases over issues that could be rectified administratively.
The judges heard that they did not offer a solution on what should be done after verification in the event it identifies errors in what its officers submit.
"We will be generating obvious petitions if we do not verify and correct the errors. We do not want a situation just like in 2007, where the then-chairman said he did not know who the winner was,” lawyer Kamau argued.
Both the Jubilee party and Attorney General Githu Muigai were in support of the application filed in court.
In their separate arguments by lawyers Kiragu Kimani and Immanuel Mbita, they argued that there was a legitimate concern which the court needed to solve.
On the other hand, the National Super Alliance, Ekuro Aukot and the Law Society of Kenya asked the justices to dismiss the case as it was an appeal of the Court of Appeal orders.