The true locus: Finality of presidential results and the national tallying centre

“A key characteristic of a democracy is the continuing responsiveness of the government to the preferences of its citizens, considered as political equals.”Robert A. Dahl, Polyarchy: Participation and Opposition (Yale University Press, New Haven 1971) 

Kenya’s presidential election is conducted in thousands of polling stations, and it is for this reason that the legal character of the vote is determined long before the figures get to the National Tallying Centre. The voter marks the ballot at the polling station. The ballot is counted there, in the presence of agents and observers, the figures are entered into the prescribed forms, and the constituency returning officer tallies, verifies and declares the constituency result. The question that has troubled the courts since 2017 is what, in law, remains open after that declaration: whether the result declared at the constituency is final, or whether it may still be altered at the National Tallying Centre. The Court of Appeal gave a firm answer in the Maina Kiai case in 2017. It described the polling station as the “true locus for the free exercise of the voters’ will” and held that the count conducted there, because of its open, transparent and participatory character, carries a finality that should not be exposed to variation or subversion. Once the constituency result has been tallied and declared, no higher electoral official may reconsider it. Any challenge to it belongs to the election dispute process. National tallying starts from declared constituency results rather than a fresh inquiry into whether those declarations should stand. The Supreme Court dealt with a related question in the 2022 Presidential Election Petition on the role of the Chairperson and Commissioners in national tallying and verification. The Court held that tallying  and verification is a collective function of the Independent Electoral and Boundaries Commission under Article 138(3)(c), and the Chairperson cannot undertake that exercise to the exclusion of the other Commissioners. Declaration under Article 138(10) is made by the Chairperson after collective tallying and verification. The Commission verifies and tallies collectively; the Chairperson declares the result. The High Court later, in Okoiti v IEBC in 2026, considered a challenge to section 39 of the Elections Act, regulation 83(2) of the Elections (General) Regulations and tallying and verification of presidential results at the National Tallying Centre. The Court maintained that results declared and certified at constituency level are final for their constituencies and cannot be altered, cancelled or varied by the Commission, its Chairperson or another returning officer. It nevertheless upheld national tallying and verification, describing verification at that stage as “confirmatory and comparative, not corrective”. As held in Okoiti, the prescribed constituency forms remain the sole reference point against which the national figures are checked. Where transmitted figures and physically delivered records differ, the discrepancy must be documented and the record that accurately reflects what was tallied, verified and declared at the polling station prevails. Commissioners are to participate in verification collectively, agents and observers are entitled to follow the process, and a constituency figure already entered into the national tally cannot later be changed administratively.