High Court Orders IEBC to Give Parties, Observers Access to Voter Registration System Records

The High Court has ordered the Independent Electoral and Boundaries Commission (IEBC) to give accredited political parties and election observers access to source code and audit logs relating to the continuous voter registration system.

The order, issued by Justice Gregory Mutai, allows the parties and observers to independently scrutinise specified technical records showing how the voter registration system operates and the activities carried out on it.

The directive will remain in force pending the hearing and determination of a petition filed by Gilbert Njoroge, who has challenged aspects of the IEBC’s electoral technology and compliance with voter registration requirements.

Court narrows scope of petition

Justice Mutai, however, narrowed the issues that will proceed to a full hearing, ruling that the broader challenge to the overall suitability of the IEBC’s electoral technology had already been determined and could not be litigated again.

“The Notice of Motion is allowed only to the extent that the respondent shall, pending the determination of the petition, grant accredited political parties and election observers standing access to the source code and audit logs relevant to continuous voter registration,” the judge ruled.

The judge said the remaining questions include whether the IEBC is constitutionally required to provide political parties and accredited observers with access to the source code and audit logs, as well as whether the voter register has been published in accordance with the law.

The surviving petition is therefore largely focused on access to electoral technology and compliance with voter-register publication requirements.

KPMG audit raises voter register concerns

Njoroge relied on excerpts from a KPMG final audit report on the voter register to support his concerns over the accuracy and transparency of the register.

According to the material presented before the court, the audit identified 481,711 registrations with duplicate or missing identification numbers.

A further 164,269 registrations reportedly contained identification numbers that were invalid when compared with records held by the National Registration Bureau.

The audit also recorded 246,465 deceased voters whose identification numbers were still appearing in the register as of June 2022.

Justice Mutai said the findings, together with incomplete responses from relevant government departments, raised genuine questions about the accuracy and transparency of the voter register.

“These are genuine, updated findings, bearing on the substance of the petitioner’s transparency and accuracy concerns,” the judge said.

The court nevertheless noted that the excerpts presented did not include all sections of the audit report dealing with database and system controls or the IEBC’s responses to the findings.

The judge also pointed out that the report contained restrictions concerning reliance on and disclosure of its contents.

Source code access to be tested at hearing

On access to the electoral technology, the court considered claims that the IEBC’s technology contractor had previously declined to provide source code and audit logs on intellectual property grounds.

Justice Mutai said those claims would need to be tested during the full hearing of the petition.

“This is sufficient to cross the first modest threshold of arguability,” he said.

However, the judge declined to suspend the wider use of the IEBC’s technology pending the determination of the case.

He noted that the 2026 by-elections had already been conducted using the system without an order stopping its use.

The court also considered the safeguards provided by Kenya’s hybrid electoral system, which combines biometric voter identification with physical result forms that can be subjected to manual recounts and judicial scrutiny.

Court declines wider interim orders

Justice Mutai was not persuaded that the petition would become meaningless if broader interim orders were not granted.

He also weighed the petitioner’s concerns about transparency against the public interest in allowing constitutionally mandated electoral processes to continue.

“The suspension of constitutionally mandated public process is a grave step to be taken only where the case for doing so is clear and compelling,” he said.

The court therefore allowed the petition to proceed on the narrower questions concerning access to source code and audit logs and compliance with voter-register publication requirements.

The broader challenge to the suitability of the electoral technology was struck out on grounds of res judicata, meaning the issue had already been determined by a competent court.

Other claims struck out

The court also struck out claims concerning the extension of the Smart Party contract and the sharing or processing of voter data.

The judge said those issues had not gone through the required alternative dispute-resolution mechanisms.

The procurement-related claim was struck out for failure to exhaust remedies before the Public Procurement and Administrative Review Board, while the data-processing claim was struck out for failure to first pursue the matter before the Data Protection Commissioner.

The ruling therefore does not declare the IEBC’s electoral technology unsuitable.

Instead, it grants accredited political parties and election observers interim access to specified technical aspects of the continuous voter registration system while the remaining questions on transparency and publication of the voter register proceed to hearing.

Muturi welcomes ruling

Former National Assembly Speaker Justin Muturi welcomed the decision, describing it as a significant development for transparency in Kenya’s electoral process.

“The petition, which was opposed by both the United Democratic Alliance and the IEBC, places renewed emphasis on transparency, accountability and verifiability in Kenya’s electoral process,” he said.