NAIROBI – Busia Senator Okiya Omtatah has filed a constitutional petition at the Milimani High Court in Nairobi seeking to declare the Independent Electoral and Boundaries Commission's (IEBC) National Tallying Centre unconstitutional for presidential elections. The lawsuit, registered as Constitutional Petition No. E757 of 2025, argues that the centralized tallying and verification process, historically conducted at the Bomas of Kenya, has no basis in the Constitution of Kenya 2010 and serves as a conduit for electoral manipulation.

If successful, the petition would fundamentally alter the management of presidential elections ahead of the 2027 General Election, eliminating what Mr. Omtatah terms the "Bomas drama" and ensuring a decentralized and more transparent process. The petition names the IEBC, its Chairperson, the Attorney General, Parliament, and the Senate as respondents.

Constitutional and Legal Arguments

The core of Senator Omtatah's case rests on his interpretation of Articles 86 and 138 of the Constitution. He contends that these articles establish that presidential election results declared at the constituency level by Returning Officers are final and binding. The petition argues that the current system, which subjects these final results to another layer of verification and tallying at the national level, unlawfully treats constituency declarations as provisional.

Mr. Omtatah specifically challenges the constitutionality of Section 39 of the Elections Act (2011) and Regulation 83(2) of the Elections (General) Regulations. He asserts these provisions illegally grant the IEBC Chairperson, as the National Returning Officer, powers to re-tally, verify, or alter results from the 290 constituencies, creating a redundant and opaque structure prone to interference. The petition seeks to have these sections of the law struck down, arguing the Chairperson's role should be purely clerical and mathematical: to simply collate the final, unalterable results from the constituencies and declare the winner.

A History of Tallying Centre Controversies

Kenya's National Tallying Centre has been a focal point of disputes in multiple election cycles. The country has a history of contested polls, with the 2007-2008 post-election violence being a dark chapter linked to opaque tallying processes. The 2017 presidential election was famously nullified by the Supreme Court, which cited significant "illegalities and irregularities" in the transmission and verification of results. The court's decision highlighted failures in adhering to the prescribed process for handling results forms (Forms 34A, 34B, and 34C), which are central to the integrity of the tally.

More recently, the August 2022 General Election saw an unprecedented public split within the IEBC's leadership at the Bomas of Kenya. Four of the seven commissioners, led by Vice-Chairperson Juliana Cherera, disowned the final presidential results announced by Chairman Wafula Chebukati, citing an "opaque" final phase of the tallying process. This "boardroom rupture" underscored the deep-seated tensions and lack of trust surrounding the centralized verification process, providing critical context for Mr. Omtatah's current legal challenge.

Implications for the 2027 General Election

Should the High Court agree with the petition, the IEBC would be compelled to fundamentally restructure its operational framework for the 2027 presidential election. The abolition of a centralized national verification centre would mean that the final and binding presidential result would be the sum of the declarations made at each of the 290 constituency tallying centres. The role of the IEBC Chairperson would be reduced to an administrative function of announcing the aggregated tally.

The petition also seeks orders to compel the IEBC to immediately and publicly post final results at each constituency, not just on an online portal, to enhance transparency and allow for independent verification by media and observers. This legal challenge is one of several recent efforts aimed at electoral reform. A similar petition was recently filed by the United Opposition alliance, also questioning the commission's procedures and the centralization of results.

Proponents argue that decentralizing finality to the constituency level would increase transparency, speed up the announcement of results, and reduce the chances of manipulation at a single, high-stakes national venue. However, critics, including some within the IEBC, have previously argued that a national verification hub is necessary to authenticate results and ensure accuracy before a final declaration is made. Mr. Omtatah has requested that the case be expedited and heard by a three-judge bench due to its national significance, arguing that any delays would leave insufficient time for necessary legislative and logistical reforms before the 2027 polls.