Assessing Election Evidence: Odinga v Ruto in Kenya

A presidential election petition is not an investigation commissioned by the court. It is a case brought by parties, and the party asking the Supreme Court to overturn a declared presidential result must place reliable evidence before the judges. That practical point sits at the centre of Odinga & 16 others v Ruto & 10 others, the Supreme Court decision arising from Kenya’s 2022 presidential election.

The judgment is useful because modern election disputes often arrive wrapped in technology. A petitioner may allege server intrusion, altered forms, manipulated transmissions, hidden users or unexplained differences between electronic and paper records. Those allegations may be serious, but seriousness is not proof. The Court’s approach was to ask a more disciplined question: what precise legal duty was breached, what evidence proves the breach, who has direct knowledge of that evidence, and what constitutional consequence follows if the allegation is established?

The dispute and the legal question

Kenya held its general election on 9 August 2022. IEBC used the Kenya Integrated Electoral Management System, commonly known as KIEMS, for biometric voter identification and for transmission of images of polling-station results. On 15 August 2022, the IEBC chairperson declared William Ruto president-elect with 7,176,141 votes, while Raila Odinga received 6,942,930 votes.

Odinga, Martha Karua and other petitioners challenged the result. Their claims included alleged interference with the results-transmission system, differences among Forms 34A, unexplained disparities between votes cast in the presidential and other elective contests, effects of postponed elections, exclusion of four commissioners from tallying and verification, and an argument that the winning candidate had not crossed the constitutional threshold required by Article 138(4).

The legal question was therefore broader than whether a computer system worked perfectly. The Court had to decide whether the petitioners proved constitutional or statutory non-compliance, irregularity or illegality to the applicable standard, and whether any proved defect justified the exceptional remedy of invalidating a presidential election.

Proof comes before burden shifting

The Supreme Court began with the legal burden. The person seeking nullification must first establish a credible factual foundation. The Court does not assemble the petitioner’s case, search for evidence that was not produced, or convert suspicion into fact merely because the allegation concerns a system that is difficult for outsiders to observe.

For ordinary election irregularities, the Court applied a standard above the ordinary civil balance of probabilities but below proof beyond reasonable doubt. Alleged election offences require proof beyond reasonable doubt. The Court also treated data-specific constitutional claims, such as the numerical threshold for an outright presidential victory, as requiring particularly exact proof.

Only after a petitioner places sufficient material before the Court does an evidential burden move to IEBC or another respondent to explain matters especially within its knowledge. That shift does not transfer the ultimate legal burden. It simply prevents the institution controlling the records from answering a properly supported claim with silence or general assurances.

Technology evidence must connect to the official system

The petitioners alleged unauthorized access, manipulation and interference with Forms 34A and the public results portal. The Supreme Court was not persuaded that the evidence demonstrated systemic compromise. It distinguished a possible technical vulnerability from proof that an election result was actually altered.

That distinction is important for future litigation. A screenshot, an unexplained spreadsheet, a social-media post or a technical assertion from a witness may raise a question, but a court must still know where the material came from, how it was obtained, what part of the official system it describes, whether the witness is qualified to interpret it and how the alleged event affected an election record.

A strong technology case therefore needs a chain from the pleaded allegation to identifiable digital or documentary evidence. Server logs, access records, transmission timestamps, hashes, original Forms 34A, polling-station copies and qualified expert analysis can be powerful. Their value comes from traceability. Election technology is not immune from challenge; it is simply subject to ordinary demands of relevance, authenticity and proof.

Affidavits are evidence, not containers for rumour

The judgment also contains a practical warning about affidavits. A lawyer should not swear to contested technical or factual matters merely because the client wishes those allegations to appear in the record. Evidence is strongest when it comes from the person who saw, created, received or analysed the material and can explain the basis of that knowledge.

This matters especially in a presidential petition because Article 140 creates an extremely compressed timetable. Weak evidence cannot always be repaired later. A witness who withdraws an affidavit, a deponent who lacks personal knowledge or an expert whose method cannot be explained may leave a gap that cannot be filled after pleadings close.

For litigants, the lesson is to build the evidential file before filing. Polling agents should preserve their copies of results forms, record objections when they occur and retain contemporaneous messages or photographs. Technical experts should receive the actual data they are asked to analyse, state their methodology and distinguish what they observed from what they infer.

IEBC is a commission, not only a chairperson

Although the Court dismissed the petitions, it made an important institutional finding against IEBC’s internal approach. Article 138(3)(c) assigns verification and tallying to the Commission, while Article 138(10) gives the chairperson the distinct function of declaring the result.

The Supreme Court therefore declared regulation 87(3) unconstitutional to the extent that it purported to vest verification and tallying solely in the chairperson to the exclusion of the other commissioners. The legal point is easy to miss because it did not alter the final result. Yet it is a binding constitutional rule about how the presidential tally must be organized.

An election body cannot defend a result only by proving the arithmetic. It must also respect the constitutional allocation of responsibility inside the institution. Collective verification creates internal accountability, while the chairperson’s declaration gives the process a legally identifiable final act.

The current section 83 position must be stated carefully

The statutory landscape has changed since the 2022 judgment. The Election Laws (Amendment) Act 2017 had changed section 83 of the Elections Act by replacing the earlier disjunctive formulation with a conjunctive test. In October 2023, however, the Court of Appeal in National Assembly v Katiba Institute & 6 others held the amendment to section 83 unconstitutional and expressly clarified that the pre-amendment form of section 83 continues to govern.

That development matters when a lawyer uses the 2022 case today. The evidential principles from Odinga v Ruto remain binding. But any current argument about the statutory nullification test should also address the restored pre-amendment section 83 and subsequent Supreme Court authority, rather than simply quoting the statutory wording that existed during the 2022 election litigation.

The wider constitutional foundation remains Articles 81 and 86. In Kombe v Karisa in 2024, the Supreme Court again described those provisions as the bedrock of Kenya’s electoral system, requiring elections to meet standards of accuracy, transparency, security and verifiability.

Why the decision matters

Odinga v Ruto is best understood as a case about proof under constitutional pressure. Presidential-election litigation is politically intense and technologically complex, but the judicial task remains evidential. A court must decide from admissible material whether a specified legal breach occurred and whether the law attaches invalidity to it.

For petitioners, the judgment discourages broad narratives unsupported by traceable records. For IEBC, it creates the opposite obligation: election systems should be designed to produce audit trails, preserve original forms and permit lawful scrutiny. The more technology becomes part of election administration, the more important it is that the technology leaves records capable of being explained in court.

The international context points in the same direction. Article 25 of the International Covenant on Civil and Political Rights protects citizens’ right to vote and to be elected at genuine periodic elections. The United Nations Human Rights Committee’s General Comment No. 25 stresses that electoral arrangements must give effect to the free expression of the electors’ will. In Kenya, that principle is implemented through the more detailed constitutional standards in Articles 38, 81, 86 and 138.

The ordinary lesson is therefore straightforward. A presidential result can be challenged, and election technology can be scrutinised, but nullification requires a case built from evidence rather than suspicion. The Court protects the vote by insisting both that administrators keep verifiable records and that challengers prove the particular breach they ask the Court to remedy.

Source note

This article is based on Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) [2022] KESC 56 (KLR), the Constitution of Kenya 2010, the Elections Act, National Assembly v Katiba Institute & 6 others [2023] KECA 1174 (KLR), Kombe v Karisa & 3 others [2024] KESC 25 (KLR), the Elections (General) Regulations, and Article 25 of the International Covenant on Civil and Political Rights together with UN Human Rights Committee General Comment No. 25.

Suggested citation: 

Ronald Serwanga, “Assessing Election Evidence: Odinga v Ruto in Kenya” East Africa Legal Insight (9 September 2026).