' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CONSTITUTIONAL PETITION NO. E026 OF 2025 AS CONSOLIDATED WITH MISC. CONSTITUTIONAL PETITION NO. E001 OF 2025
IN THE MATTER OF ARTICLES 22, 23, 38, 88,165, 258 & 259 OF THE CONSTITUTION
AND
THE ELECTIONS ACT NO. 24 OF 2011
BETWEEN
ERICK WEKESA ……………………………..…………1ST PETITIONER
BEN PAUL WANGILA…………………………….……2nd PETITIONER
AND
THE CONSTITUENCY RETURNING OFFICER,
KABUCHAI CONSTITUENCY ……………………...1ST RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION………………..……2ND RESPONDENT
THE ATTORNEY GENERAL……………………..…3RD RESPONDENT
RULING
A. INTRODUCTION.
1. Before me are two applications dated 24th and 25th November 2025 and which I shall refer to as 1st and 2nd application respectively. This decision relates to both applications as they were duly consolidated on 25th November 2025.
B. 1ST MOTION APPLICATION
2. Vide a Motion dated 24th November 2025, the 1st Petitioner herein seeks the following orders:
a. This Application be certified urgent and heard ex-parte.
b. That pending hearing and determination of this Application inter-partes, this Honourable Court be pleased to issue a temporary injunction against the 1st and 2nd Respondents, its agents or assigns from proceeding with any preliminary preparations at any other nominated tallying centre.
c. That the Honourable Court be pleased to declare that Musese CDF Hall is legally recognized and official tallying centre in the Kabuchai/Chwele by-election scheduled for 27th November 2025.
d. That this Honourable Court be pleased to order the 1st Respondent to conduct the Kabuchai/Chwele by-election in strict conformity to the Gazette Notice No. 15734 published on 29th October 2025.
e. That the Respondents jointly bear the costs of this application.
3. The Motion application is premised on the following grounds:
a. That the Kabuchai/Chwele by-election is scheduled for 27th November 2025, and the Applicant is one of the registered votes and aspirant for the Member of the County Assembly
b. That on 29th October 2025, the 1st Respondent in exercise of its Constitutional mandate published Gazette Notice No. 15734 which officially recognized MUSESE CD HALL the official tallying centre the Kabuchai/Chwele by election scheduled for 27th November 2025 and this information has been in public domain among the electorates.
c. That Section 38 of the Election Act 2011 stipulates that upon notification to the public gazette notice, the 2nd Respondent is under a legal obligation to conduct the election strictly in conformity with the terms of the Gazette Notice, and any departure from the notice must be strictly within the confines of the law.
d. That the 1st and 2nd Respondents are under a legal obligation to maintain the tallying centre as published in the gazette Notice. The 1st Respondent has not formally degazetted Musese CDF Hall as the official tallying centre and gazetted any other new centre for that purpose pursuant to the regulations governing the scheduled electoral exercise.
e. That despite the unequivocal legal provision and without any justification, the 1st and 2nd Respondents have proceeded to make alternative arrangements with the effect of transferring the official tallying centre from Musese CDF Hall to Kisiwa National, Polytechnic. The 1st Petitioner sought clarity on this issue through correspondence to the 1st and 2nd Respondents but no response was received
f. That the abrupt and unjustified move to transfer the tallying centre without any legal justification and proper communication to all the voters and aspirants concerned raises doubts as to the transparency and accountability of the scheduled electoral exercise in the said by-election.
g. That a free and fair electoral process can only be guaranteed when the process is transparent and verifiable to the required legal threshold pursuant to Article 81 (e) of the Constitution of Kenya 2010. A transparent electoral process is the cornerstone of a free and fair election where all the contestants feel contended with the end results.
h. That the 1st and 2nd Respondents’ unilateral and illegal decision to transfer the tallying Centre from Musese CDF Hall to Kisiwa National Polytechnic without following the due process violates the legitimate expectation of the voters and undermines transparency.
i. That the voters, Applicants, Agents, Election observers, media are apprehensive that the sudden, illegal and unjustified decision to move the tallying centre raises doubts and undermines the integrity of the electoral process.
j. That unless this Honourble Court intervenes by restraining the 1st and 2nd Respondents from perpetuating an illegality in the scheduled by-election, the exercise shall proceed with an ungazetted tallying centre contrary to the provisions of the statute and which violation shall undermine the integrity of the electoral process.
4. The application is supported by an Affidavit sworn by the 1st Petitioner on 24th November 2025, wherein he asserts that he is one of the registered voters and an aspirant for the Member of the County Assembly.
5. According to him, pursuant to Constitutional mandate published Gazette Notice No. 15734 on 29th October 2025, Musese CDF Hall was gazetted as the official tallying Centre for Kabuchai/Chwele by-election scheduled for 27th November 2025. Subsequently, Section 38 of the Election Act 2011 stipulates that upon notification to the public gazette notice, the 2nd Respondent is under a legal obligation to conduct the election strictly in conformity with the terms of the Gazette Notice, and any departure from the notice must be strictly within the confines of the law.
6. He avers that it is the legal obligation of the 1st and 2nd Respondent’s to maintain the tallying centre as published in the gazette notice and the 1st Respondent is yet to official degazette Musese CDF Hall as the official tallying centre.
7. He avers that the change of the Musese CDF Hall as the official tallying Centre for Kabuchai/Chwele prompted his correspondence marked as EW3 seeking clarity on the same, but the 2nd Petitioner has not received any response to date. Further, he insists that the change in the tallying centres was done without due process and that act violates the legitimate expectations of the voters as it undermines transparency.
8. In conclusion, he urges this Court to intervene by restraining the 1st and 2nd Respondents from perpetuating an illegality in the scheduled by-election and allow the same proceed with gazette tallying centre, Musese CDF Hall.
9. Although the Attorney General was indicated as a party, there were no specific averments made towards them.
C. 2ND MOTION APPLICATION
10. Pursuant to Articles 22, 23, 38, 88, 165, 258 & 259 of the Constitution and Rules 20 and 21 of the Constitution of Kenya [Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual] (Practice and Procedure) Rules 2006), Section 38 of the Election Act, 2011 and The Elections (General) (Amendment) Regulations, 2017 Section 3A of the Civil Procedure Rules and Order 53, Rule 3 and 4 of the Civil Procedure Rules 2010, the Petitioner herein vide a Motion application dated 25th November 2025, seeks orders that:-
a. This Application be certified urgent and heard ex-parte.
b. An Order of prohibition directed at the 1st Respondent and 2nd Respondents, their officers and any other authority acting on their instruction prohibiting them from changing, shifting and/or moving the Tallying Centre for the declared by-elections in Kabuchai/Chwele Ward within Kabuchai Constituency and Bungoma County from the gazetted Tallying Centre of Musese CDF Hall to Kisiwa Technical Institute or any other venue other than Musese CDF Hall pending the inter-partes hearing of this Application, this Petition or until further orders of the Court.
c. The 1st Respondent and 2nd Respondent be directed to conduct and undertake all the preliminary preparations, planning and arrangement of the upcoming Kabuchai/Chwele Ward by-elections slated for 27th November, 2025 from the gazetted Tallying Centre of Musese CDF Hall pending the inter-partes hearing of this Application, this Petition or until further orders of the Court.
d. An Order in the nature of Judicial Review order of Certiorari to bring into this Court and quash the decision of the Respondents to move the Kabuchai/Chwele Ward by-elections Tallying Centre from Musese CDF Hall to Kisiwa Technical Institute as set out in Gazette no.16966 of 21st November, 2025 Vol. CXXVII-No. 237.
e. The costs of this application be provided for.
11. The Motion application is premised on the following grounds:
a. The 2nd Petitioner is a registered voter in Kabuchai/Chwele Ward and was not informed of the change in the tallying centre until 25th November 2025.
b. That the shift of the venue of the Constituency Tallying Centre is in flagrant abuse of the administrative powers, the law and procedure as the Respondents failed, neglected and or refused to involve all the relevant stakeholders by way of public participation thereby making a mockery of Article 10 of the Constitution of Kenya, 2010.
c. The fact that the change in the tallying Centre has been done in barely a week to the by-elections and the fact that the new tallying centre is outside the Ward where the elections are being held and further, outside the Traditional and known Tallying centre of Musese CDF Hall shows that the decision was malicious and made in absolute bad faith.
d. In terms of location, Musese CDF Hall is located in more central and located at chwele Kabuchai where the elections are being held unlike Kisiwa Technical Institute that is located In West Nalondo Ward; in any event, there is no justification for the Tallying Centre to the new location.
e. The 1st and 2nd Respondents'' actions and/or omissions constitute a breach of the 2nd Petitioner''s constitutional and political rights to a free, fair election and to participate in the forth-coming elections.
f. The 1st and 2nd Respondents'' actions and/or omissions contravene the Constitution and Statute. The 1st Respondent''s actions ought to be restrained.
12. The application is supported by an Affidavit sworn by the 2nd Petitioner on 25th November 2025, wherein he asserts that he is challenging the decision of the 2nd Respondent to unilaterally change the gazetted tallying centre for the by-elections scheduled for 27th November, 2025 from Musese CDF Hall to Kisiwa Technical Training Institute without public participation or providing any legal justification. The 2nd Petitioner alleges that this action was taken in bad faith, with the intent to influence the election outcome and subvert the will of the people of Kabuchai/Chwele Ward.
13. The 2nd Petitioner asserts that the actions of the Respondents contravene his constitutional and political rights to free and fair elections as enshrined under Article 38 of the Constitution. He seeks urgent determination of the legality and validity of the Respondents’ actions to ensure the integrity and sustainability of the electoral process.
14. Further, the 2nd Petitioner provides detailed accounts of the events leading to the filing of the Petition, including the declaration of the by-election date (11th August, 2025), the gazetting of tallying centres (29th October, 2025) and the subsequent change of the tallying centre (25th November, 2025). He annexed a copy of the Notice of a copy the scheduled by-elections marked as BPW1, copy of the gazette notice marked as BPW2 and copy of the gazette notice marked as BPW3 respectively.
15. The 2nd Petitioner asserts that 2nd Respondent’s actions are a violation of Articles 38(2) and (3) of the Constitution, which guarantee political rights to free and fair elections. The lack of public participation in the decision to change the tallying centre, contrary to constitutional and statutory requirement and that the sudden change of the tallying centres is of bad faith and potential manipulation of the electoral process by the Respondents.
16. Finally, the 2nd Petitioner is before this Court with a request for urgent judicial intervention to ensure the integrity and fairness of the by-election process.
17. In conclusion, the 2nd Petitioner prays for this Court to grant orders restraining the Respondents from implementing the change of the tallying centre and to uphold the principles of free and fair elections as enshrined in the Constitution and the Elections Act.
18. In response to the 1st and 2nd Motion applications, Henry Bahati Lumiti, the Returning Officer for Kabuchai Constituency, on 26th November 2025, swore a Replying Affidavit on behalf of the Respondents herein. According to him, it the Independent Electoral Boundary Commission is constitutionally mandated to conduct and supervise elections, including designating tallying centres under Regulation 84 of the Elections (General) Regulations, 2012. Tallying centres are venues where votes from polling stations are received, verified, counted, and officially tallied.
19. He avers that the reasons for changing the tallying centre, Musese CDF Hall as was initially gazette on 29th October 2025, was that Musese CDF Hall was deemed unsuitable due to security and neutrality concerns. Further, he avers that the hall is controlled by the area Member of Parliament, who supports the 2nd Petitioner and stakeholders raised concerns about intimidation and lack of neutrality as the area MP had issued threats, including threats to burn IEBC offices and compromising security.
20. He avers that the incidents of tension, threats, and violence were reported and these concerns were communicated to the County Election Manager via email on 9th November 2025, as a result of a security meeting that was held on 31st October 2025. Further, he avers that owing to the concerns raised on 31st October 2025, the 1st and 2nd Respondents herein convened a security and stakeholders meeting on 4th November 2025, attended by candidates, agents, security agencies, political party representatives, and local administrators, where all stakeholders unanimously agreed that Musese CDF Hall was unsafe and unsuitable as a tallying centre.
21. He avers that the 2nd Petitioner herein attended the meeting held on 4th November 2025, raised no objections, and signed the attendance sheet. He availed a copy of the attendance list signed by the 2nd Petitioner on 4th November 2025, marked as HBL-1.
22. As a result, He avers that Musese CDF Hall was de-gazetted, and Kisiwa Technical Institute was gazetted as the new tallying centre via Gazette Notice No. 16966 on 21st November 2025 in Kenya Gazette Vol. CXXVII-No. 237 (annexed and marked as HBL-4). Kisiwa Technical Institute was chosen for its neutrality, security, spaciousness, and prior use as a tallying centre during the 2022 by-election without complaints.
23. He avers that the by-election is scheduled for 27th November 2025, all respective election materials have been dispatched, and election officials have been deployed to their stations with instructions to return results to Kisiwa Technical Institute for verification, aggregation, and declaration of the winner.
24. He insists that the 2nd Petitioner allegations of lack of consultation, sudden changes, absence of gazettement, and threats to transparency is simply misleading and he refutes these claims, stating that the 2nd Petitioner was consulted, agreed to the change, and signed the attendance sheet during the stakeholder meeting.
25. Further, he avers that the change of the tallying centre was lawful, necessary, consultative, and properly gazetted, in compliance with Article 81 and 86 of the Constitution, the Elections Act, 2011, and Regulation 84 of the Elections (General) Regulations, 2012 and the changing of the tallying centre a day before the by-election would disrupt election management, create confusion, require new public participation and gazettement, compromise the integrity of the election, and expose the process to security risks.
26. In Conclusion, he argues that the 2nd Petitioner’s application and Petition is frivolous, an abuse of the Court process, and is intended to derail the by-election. He requests this Court to dismiss the entire Petition and application with costs.
27. Vide Court directions dated 25th November 2025, this Court directed the parties to canvass the application dated 24th November 2025 and 25th November 2025 by way of oral submissions. The Respondents had prior to that filed their written submissions to the applications.
D. SUBMISSIONS
Petitioners Submissions
28. The Petitioners’ counsels’ submissions were that, the Respondents unilaterally changed the tallying centre from Musese CDF Hall to Kisiwa Technical Institute without conducting public participation and without informing the petitioners of the said change. Further, that no reasons were assigned for the sudden change of the tallying centre in a period of 5 days to the by-election.
29. It was submitted that the gazettement of Musese CDF Hall as a tallying centre created a legitimate expectation upon the petitioners that the tallying of the votes will be conducted at that Musese CDF Hall.
30. The Petitioners posit that the abrupt change of the tallying centre will compromise the election contrary to the provisions of Article 81 and 86 of the Constitution of Kenya 2010. Further, that IEBC is a public organ that is funded by tax payers’ money and is duty bound to exercise its mandate within the confines of legislation and the Constitution of Kenya 2010 and is thus subject to scrutiny and oversight by the voters in whom lies the sovereign power as enshrined under Article 1 of the Constitution. On the same vein IEBC is obligated to uphold national values as prescribed under Article 10 of the Constitution of Kenya 2010 which include participation of the people, good governance, integrity, transparency and accountability.
31. The Petitioners have cited the case of Mohammed Ibrahim Abdi -vs- IEBC & 2 Others ( 2017) eKLR where in circumstances that they say were pari materia to the current scenario, the court quashed a gazette notice that changed the tallying Centre for Mandera North Constituency election.
32. The Petitioners submit that the attendance register of meetings is not minutes of resolutions to affect a change of the tallying centre. Further that the change was shrouded in mystery and was a state secret.
33. The case of Raila Amollo Odinga -vs- IEBC (Petition No 1 of 2017) was also cited on the need for accuracy and verifiability of an election process.
34. As regard the alleged threats of violence as alleged to by the Respondents in the replying affidavit and supplementary relying affidavit of Henry Bahati Lumiti, it is submitted by the petitioners that the petitioner in petition no E026/2025 is not the speaker in the videos that have been produced and no evidence of an occurrence book report nor arrest of any individual has been adduced and that in any event the National security organs are duty bound to provide security.
35. The Petitioners submit that the reason advanced by the Respondents that Musese CDF is controlled by the area member of parliament who supports one of the candidates and therefore there is partisan influence, is neither here nor there as Kisiwa Technical Institute will favour one candidate viz a viz, the other candidates.
36. It is also posited that students at Kisiwa Technical Institute are currently taking their examination and the holding of the tallying exercise at the institution will disrupt their examinations.
37. The Petitioners submit that their political rights as envisaged under Article 38(2) have been infringed upon by the Respondents. Further that regulation 84(2) of the Election (General) regulation (2012) provides that a tallying Centre must be in a public building that is as close as possible to the voters. That presidential election tallying must be in the capital city while for constituents it is at the County headquarters. In the same vein, it is submitted that for Ward elections, the tallying centre must be situated within the ward and any deviation must be explained and in the absence of any explanation being given, a presumption arises that the change of the tallying centre was made in bad faith.
38. On the issue of prejudice, the Petitioners submit that if the Respondents are convinced that the election is likely to be marred by insecurity then the 2nd Respondent ought to cancel the election all together or move it elsewhere otherwise it would beat logic to go and tally votes in a neutral and supposed safe place when the voters are left to die due to anticipated violence.
1st and 2nd Respondents’ submissions
39. It is the 1st and 2nd Respondents’ submissions that the 2nd Respondent has the exclusive mandate under article 88(4) of the constitution of Kenya 2010 and under regulation 84 of the elections (General) regulation 2012 to designate tallying centres, vary or change such centres and to take any measures necessary to ensure orderly conduct of elections. The case of IEBC -vs- Maina Kiai & 5 others (2017) eKLR is cited to support the position that Courts do not micromanage the election process and will only intervene where there is illegality, irrationality or procedural impropriety.
40. It is the 1st and 2nd Respondents position that it followed due process prior to the change of the tallying centre by holding stakeholders’ consultations on 4th November 2025, after security concerns were raised about the neutrality and accessibility of Musese CDF Hall, in a security meeting held on 31st October 2025, which prompted a request for a change of the tallying centre by the 1st Respondent to the 2nd Respondent specifically due to intelligence report, tensions and threats from the area member of parliament of his intentions to torch IEBC offices. That the 2nd Respondent reviewed the situation and acceded to that request vide a gazette notice published on 21st November 2025, thus de-gazetting Musese CDF Hall and gazetting Kisiwa Technical Institute as the tallying centre.
41. As regards the question whether the Petitioners and other stakeholders were consulted, the 1st and 2nd Respondents maintain that the Petitioners and other stake holders were present and participated in a meeting held on 4th November 2025, as evident from the attendance register and that 26 stakeholders were in attendance and that the Petitioners did not raise any objection to the deliberations made thereat.
42. The 1st and 2nd Respondents maintain that the Petitions herein filed by two of the parties who participated in the consultative meetings, are an afterthought whose sole purpose is to detail the by-election slated for the 27th November 2025.
43. On the prayer for issuance of injunctive relief, it is the 1st and 2nd Respondents position that such orders can only issue in instances where the applicants demonstrate violation of rights by citing the specific provisions of the constitution that are said to have been breached and the manner in which the breach has happened and that conservatory orders cannot issue on the basis of speculation and apprehension. The 1st and 2nd Respondents submit that the Petitioners have not adduced proof of any violation, prejudice and/or any unlawful action by the 1st and 2nd Respondents.
44. On the issue of prejudice, it’s the 1st and 2nd Respondents case that grant of the orders sought in the Petitioners applications will highly prejudice the election process as all the preparations for the election are complete; that all returning officers are under instructions to return forms 36A to Kisiwa Technical Institute tallying centre for verification, aggregation, announcement, declaration of the winner and transmission of the final results to the National tallying centre. Further, that all equipments and systems have been set up at Kisiwa Technical Institute.
45. The Respondents have impugned the jurisdiction of this court to grant the prayers sought given that the Petitioners have approached this court by way of Constitutional petitions instead of by invoking the judicial review jurisdiction of this court.
46. The 1st and 2nd Respondents maintain that the change of the tallying centre was done legally, procedurally and that stakeholder’s participation was duly conduct prior to the change. Further, the change was informed by the need to ensure security, neutrality and the integrity of the scheduled by election. The 1st and 2nd Respondents thus pray that the applications herein be dismissed for being frivolous and in abuse of the court process.
E. ISSUES FOR DETERMINATION
47. The following are the issues are for determination:
a. Does this court have the jurisdiction to grant the prayers sought?
b. Is the selection of a tallying centre a prerogative of the 2nd Respondent?
c. Was public participation conducted prior to the change of the tallying Centre.
d. Would the petitioners and voters of Kabuchai/Chwele suffer prejudice with the movement of the tallying centre?
F. ANALYSIS AND DETERMINATION
a. As to whether this court has the jurisdiction to grant the orders sought, I do find solace in the provisions of article 23 (3) of the Constitution of Kenya which mandates this court to grant the orders craved for by the Petitioners.
b. Is the selection of a tallying centre a prerogative of the 2nd Respondent?
48. Regulation 83 of Election (General) Regulation,2012 provides that tallying is a collation of the final results from each polling station in a constituency for election of Member of National Assembly and Member of County Assemble. The said regulation provides as follows :
“83 (1) Immediately after the results of the poll from all polling stations in a constituency have been received by the Returning Officer, the Returning Officer shall, in the presence of candidates or agents and observers, if present –
a) tally the final results from each polling station in a constituency for the election of a member of the National Assembly and members of the County Assembly;
b) disregard the results of the count of a polling station where the total valid votes exceed the number of registered voters in that polling station;
c) disregard the results of the count of a polling station where the total votes exceed the total number of voters who turned out to vote in that polling station;
d) collate and publicly announce to the persons present the results from each polling station in the constituency for the election of the President, county Governor, senator and county women representative to the National Assembly;
e) complete the relevant Form 35B and 36B for the respective elective position set out in the Schedule in which the returning officer shall declare, as the case may be, the –
i. name of the respective electoral area;
ii. total number of registered voters;
iii. votes cast for each candidate or referendum side in each polling station;
iv. number of rejected votes in each polling station;
v. aggregate number of votes cast in the respective electoral area; and
vi. aggregate number of rejected votes;
f) Sign and date the relevant forms and publicly declare the results for the position of –
i. member of County assembly;
ii. member of National assembly; and
g) Issue certificates to persons elected in the county assembly and National Assembly Elections in Forms 36C and 35C respectively set out in the Schedule;
h) Deliver to the county returning officer the collated results for the election of the county Governor, senator and county women representative to the National Assembly; and
i) Deliver to the Chairperson of the Commission the collated results for the election of the president of the national tallying centre.
(4) The Chairperson of the Commission shall tally and verify the results received at the National tallying centre.”
49. Regulation 84 of Election (General) Regulation, 2012 provides that a tallying centre is a venue gazetted by the Commission for the purpose of tallying. In Regulation 84(2) requirements for selecting a tallying centre are stated as –
“84(2) A tallying centre shall be selected subject to the following requirements –
a) The presidential elections tallying centre shall be located in Nairobi;
b) The county tallying centre shall be located at the county headquarters;
c) The constituency tallying centre shall be located at the constituency or district headquarters;
50. d) All tallying centres shall be located at public buildings.”
51. In case of selection in the constituency tallying centre it shall be located in the constituency or district headquarters and that they shall all be located at a public building and it is only the 2nd Respondent herein that has the prerogative to select the said tallying centre. This was duly demonstrated pursuant to Gazette Notice No. 16966 on 21st November 2025 in Kenya Gazette Vol. CXXVII-No. 237.
c. Was public participation conducted prior to the change of the tallying centre?
52. Public participation is enshrined in the Constitution of Kenya in Article 1, where it is stated that the sovereign power belongs to the people of Kenya and the people may exercise their sovereign power either directly or through their democratically elected representatives. Article 10 (2) (a) enshrines the right of participation of the people as a national value. Section 26 of the Independent Electoral and Boundaries Commission Act Chapter 7 C of the Laws of Kenya provides that IEBC must conduct public participation by providing that :
“ In performance of it’s functions, it shall not be subjected to the direction or control of any person or authority, but shall observe the principle of public participation ad the requirement for consultation with stakeholders.”
53. The right to participate in public affairs, voting rights and the right
[...truncated]
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CONSTITUTIONAL PETITION NO. E026 OF 2025 AS CONSOLIDATED WITH MISC. CONSTITUTIONAL PETITION NO. E001 OF 2025
IN THE MATTER OF ARTICLES 22, 23, 38, 88,165, 258 & 259 OF THE CONSTITUTION
AND
THE ELECTIONS ACT NO. 24 OF 2011
BETWEEN
ERICK WEKESA ……………………………..…………1ST PETITIONER
BEN PAUL WANGILA…………………………….……2nd PETITIONER
AND
THE CONSTITUENCY RETURNING OFFICER,
KABUCHAI CONSTITUENCY ……………………...1ST RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION………………..……2ND RESPONDENT
THE ATTORNEY GENERAL……………………..…3RD RESPONDENT
RULING
A. INTRODUCTION.
1. Before me are two applications dated 24th and 25th November 2025 and which I shall refer to as 1st and 2nd application respectively. This decision relates to both applications as they were duly consolidated on 25th November 2025.
B. 1ST MOTION APPLICATION
2. Vide a Motion dated 24th November 2025, the 1st Petitioner herein seeks the following orders:
a. This Application be certified urgent and heard ex-parte.
b. That pending hearing and determination of this Application inter-partes, this Honourable Court be pleased to issue a temporary injunction against the 1st and 2nd Respondents, its agents or assigns from proceeding with any preliminary preparations at any other nominated tallying centre.
c. That the Honourable Court be pleased to declare that Musese CDF Hall is legally recognized and official tallying centre in the Kabuchai/Chwele by-election scheduled for 27th November 2025.
d. That this Honourable Court be pleased to order the 1st Respondent to conduct the Kabuchai/Chwele by-election in strict conformity to the Gazette Notice No. 15734 published on 29th October 2025.
e. That the Respondents jointly bear the costs of this application.
3. The Motion application is premised on the following grounds:
a. That the Kabuchai/Chwele by-election is scheduled for 27th November 2025, and the Applicant is one of the registered votes and aspirant for the Member of the County Assembly
b. That on 29th October 2025, the 1st Respondent in exercise of its Constitutional mandate published Gazette Notice No. 15734 which officially recognized MUSESE CD HALL the official tallying centre the Kabuchai/Chwele by election scheduled for 27th November 2025 and this information has been in public domain among the electorates.
c. That Section 38 of the Election Act 2011 stipulates that upon notification to the public gazette notice, the 2nd Respondent is under a legal obligation to conduct the election strictly in conformity with the terms of the Gazette Notice, and any departure from the notice must be strictly within the confines of the law.
d. That the 1st and 2nd Respondents are under a legal obligation to maintain the tallying centre as published in the gazette Notice. The 1st Respondent has not formally degazetted Musese CDF Hall as the official tallying centre and gazetted any other new centre for that purpose pursuant to the regulations governing the scheduled electoral exercise.
e. That despite the unequivocal legal provision and without any justification, the 1st and 2nd Respondents have proceeded to make alternative arrangements with the effect of transferring the official tallying centre from Musese CDF Hall to Kisiwa National, Polytechnic. The 1st Petitioner sought clarity on this issue through correspondence to the 1st and 2nd Respondents but no response was received
f. That the abrupt and unjustified move to transfer the tallying centre without any legal justification and proper communication to all the voters and aspirants concerned raises doubts as to the transparency and accountability of the scheduled electoral exercise in the said by-election.
g. That a free and fair electoral process can only be guaranteed when the process is transparent and verifiable to the required legal threshold pursuant to Article 81 (e) of the Constitution of Kenya 2010. A transparent electoral process is the cornerstone of a free and fair election where all the contestants feel contended with the end results.
h. That the 1st and 2nd Respondents’ unilateral and illegal decision to transfer the tallying Centre from Musese CDF Hall to Kisiwa National Polytechnic without following the due process violates the legitimate expectation of the voters and undermines transparency.
i. That the voters, Applicants, Agents, Election observers, media are apprehensive that the sudden, illegal and unjustified decision to move the tallying centre raises doubts and undermines the integrity of the electoral process.
j. That unless this Honourble Court intervenes by restraining the 1st and 2nd Respondents from perpetuating an illegality in the scheduled by-election, the exercise shall proceed with an ungazetted tallying centre contrary to the provisions of the statute and which violation shall undermine the integrity of the electoral process.
4. The application is supported by an Affidavit sworn by the 1st Petitioner on 24th November 2025, wherein he asserts that he is one of the registered voters and an aspirant for the Member of the County Assembly.
5. According to him, pursuant to Constitutional mandate published Gazette Notice No. 15734 on 29th October 2025, Musese CDF Hall was gazetted as the official tallying Centre for Kabuchai/Chwele by-election scheduled for 27th November 2025. Subsequently, Section 38 of the Election Act 2011 stipulates that upon notification to the public gazette notice, the 2nd Respondent is under a legal obligation to conduct the election strictly in conformity with the terms of the Gazette Notice, and any departure from the notice must be strictly within the confines of the law.
6. He avers that it is the legal obligation of the 1st and 2nd Respondent’s to maintain the tallying centre as published in the gazette notice and the 1st Respondent is yet to official degazette Musese CDF Hall as the official tallying centre.
7. He avers that the change of the Musese CDF Hall as the official tallying Centre for Kabuchai/Chwele prompted his correspondence marked as EW3 seeking clarity on the same, but the 2nd Petitioner has not received any response to date. Further, he insists that the change in the tallying centres was done without due process and that act violates the legitimate expectations of the voters as it undermines transparency.
8. In conclusion, he urges this Court to intervene by restraining the 1st and 2nd Respondents from perpetuating an illegality in the scheduled by-election and allow the same proceed with gazette tallying centre, Musese CDF Hall.
9. Although the Attorney General was indicated as a party, there were no specific averments made towards them.
C. 2ND MOTION APPLICATION
10. Pursuant to Articles 22, 23, 38, 88, 165, 258 & 259 of the Constitution and Rules 20 and 21 of the Constitution of Kenya [Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual] (Practice and Procedure) Rules 2006), Section 38 of the Election Act, 2011 and The Elections (General) (Amendment) Regulations, 2017 Section 3A of the Civil Procedure Rules and Order 53, Rule 3 and 4 of the Civil Procedure Rules 2010, the Petitioner herein vide a Motion application dated 25th November 2025, seeks orders that:-
a. This Application be certified urgent and heard ex-parte.
b. An Order of prohibition directed at the 1st Respondent and 2nd Respondents, their officers and any other authority acting on their instruction prohibiting them from changing, shifting and/or moving the Tallying Centre for the declared by-elections in Kabuchai/Chwele Ward within Kabuchai Constituency and Bungoma County from the gazetted Tallying Centre of Musese CDF Hall to Kisiwa Technical Institute or any other venue other than Musese CDF Hall pending the inter-partes hearing of this Application, this Petition or until further orders of the Court.
c. The 1st Respondent and 2nd Respondent be directed to conduct and undertake all the preliminary preparations, planning and arrangement of the upcoming Kabuchai/Chwele Ward by-elections slated for 27th November, 2025 from the gazetted Tallying Centre of Musese CDF Hall pending the inter-partes hearing of this Application, this Petition or until further orders of the Court.
d. An Order in the nature of Judicial Review order of Certiorari to bring into this Court and quash the decision of the Respondents to move the Kabuchai/Chwele Ward by-elections Tallying Centre from Musese CDF Hall to Kisiwa Technical Institute as set out in Gazette no.16966 of 21st November, 2025 Vol. CXXVII-No. 237.
e. The costs of this application be provided for.
11. The Motion application is premised on the following grounds:
a. The 2nd Petitioner is a registered voter in Kabuchai/Chwele Ward and was not informed of the change in the tallying centre until 25th November 2025.
b. That the shift of the venue of the Constituency Tallying Centre is in flagrant abuse of the administrative powers, the law and procedure as the Respondents failed, neglected and or refused to involve all the relevant stakeholders by way of public participation thereby making a mockery of Article 10 of the Constitution of Kenya, 2010.
c. The fact that the change in the tallying Centre has been done in barely a week to the by-elections and the fact that the new tallying centre is outside the Ward where the elections are being held and further, outside the Traditional and known Tallying centre of Musese CDF Hall shows that the decision was malicious and made in absolute bad faith.
d. In terms of location, Musese CDF Hall is located in more central and located at chwele Kabuchai where the elections are being held unlike Kisiwa Technical Institute that is located In West Nalondo Ward; in any event, there is no justification for the Tallying Centre to the new location.
e. The 1st and 2nd Respondents'' actions and/or omissions constitute a breach of the 2nd Petitioner''s constitutional and political rights to a free, fair election and to participate in the forth-coming elections.
f. The 1st and 2nd Respondents'' actions and/or omissions contravene the Constitution and Statute. The 1st Respondent''s actions ought to be restrained.
12. The application is supported by an Affidavit sworn by the 2nd Petitioner on 25th November 2025, wherein he asserts that he is challenging the decision of the 2nd Respondent to unilaterally change the gazetted tallying centre for the by-elections scheduled for 27th November, 2025 from Musese CDF Hall to Kisiwa Technical Training Institute without public participation or providing any legal justification. The 2nd Petitioner alleges that this action was taken in bad faith, with the intent to influence the election outcome and subvert the will of the people of Kabuchai/Chwele Ward.
13. The 2nd Petitioner asserts that the actions of the Respondents contravene his constitutional and political rights to free and fair elections as enshrined under Article 38 of the Constitution. He seeks urgent determination of the legality and validity of the Respondents’ actions to ensure the integrity and sustainability of the electoral process.
14. Further, the 2nd Petitioner provides detailed accounts of the events leading to the filing of the Petition, including the declaration of the by-election date (11th August, 2025), the gazetting of tallying centres (29th October, 2025) and the subsequent change of the tallying centre (25th November, 2025). He annexed a copy of the Notice of a copy the scheduled by-elections marked as BPW1, copy of the gazette notice marked as BPW2 and copy of the gazette notice marked as BPW3 respectively.
15. The 2nd Petitioner asserts that 2nd Respondent’s actions are a violation of Articles 38(2) and (3) of the Constitution, which guarantee political rights to free and fair elections. The lack of public participation in the decision to change the tallying centre, contrary to constitutional and statutory requirement and that the sudden change of the tallying centres is of bad faith and potential manipulation of the electoral process by the Respondents.
16. Finally, the 2nd Petitioner is before this Court with a request for urgent judicial intervention to ensure the integrity and fairness of the by-election process.
17. In conclusion, the 2nd Petitioner prays for this Court to grant orders restraining the Respondents from implementing the change of the tallying centre and to uphold the principles of free and fair elections as enshrined in the Constitution and the Elections Act.
18. In response to the 1st and 2nd Motion applications, Henry Bahati Lumiti, the Returning Officer for Kabuchai Constituency, on 26th November 2025, swore a Replying Affidavit on behalf of the Respondents herein. According to him, it the Independent Electoral Boundary Commission is constitutionally mandated to conduct and supervise elections, including designating tallying centres under Regulation 84 of the Elections (General) Regulations, 2012. Tallying centres are venues where votes from polling stations are received, verified, counted, and officially tallied.
19. He avers that the reasons for changing the tallying centre, Musese CDF Hall as was initially gazette on 29th October 2025, was that Musese CDF Hall was deemed unsuitable due to security and neutrality concerns. Further, he avers that the hall is controlled by the area Member of Parliament, who supports the 2nd Petitioner and stakeholders raised concerns about intimidation and lack of neutrality as the area MP had issued threats, including threats to burn IEBC offices and compromising security.
20. He avers that the incidents of tension, threats, and violence were reported and these concerns were communicated to the County Election Manager via email on 9th November 2025, as a result of a security meeting that was held on 31st October 2025. Further, he avers that owing to the concerns raised on 31st October 2025, the 1st and 2nd Respondents herein convened a security and stakeholders meeting on 4th November 2025, attended by candidates, agents, security agencies, political party representatives, and local administrators, where all stakeholders unanimously agreed that Musese CDF Hall was unsafe and unsuitable as a tallying centre.
21. He avers that the 2nd Petitioner herein attended the meeting held on 4th November 2025, raised no objections, and signed the attendance sheet. He availed a copy of the attendance list signed by the 2nd Petitioner on 4th November 2025, marked as HBL-1.
22. As a result, He avers that Musese CDF Hall was de-gazetted, and Kisiwa Technical Institute was gazetted as the new tallying centre via Gazette Notice No. 16966 on 21st November 2025 in Kenya Gazette Vol. CXXVII-No. 237 (annexed and marked as HBL-4). Kisiwa Technical Institute was chosen for its neutrality, security, spaciousness, and prior use as a tallying centre during the 2022 by-election without complaints.
23. He avers that the by-election is scheduled for 27th November 2025, all respective election materials have been dispatched, and election officials have been deployed to their stations with instructions to return results to Kisiwa Technical Institute for verification, aggregation, and declaration of the winner.
24. He insists that the 2nd Petitioner allegations of lack of consultation, sudden changes, absence of gazettement, and threats to transparency is simply misleading and he refutes these claims, stating that the 2nd Petitioner was consulted, agreed to the change, and signed the attendance sheet during the stakeholder meeting.
25. Further, he avers that the change of the tallying centre was lawful, necessary, consultative, and properly gazetted, in compliance with Article 81 and 86 of the Constitution, the Elections Act, 2011, and Regulation 84 of the Elections (General) Regulations, 2012 and the changing of the tallying centre a day before the by-election would disrupt election management, create confusion, require new public participation and gazettement, compromise the integrity of the election, and expose the process to security risks.
26. In Conclusion, he argues that the 2nd Petitioner’s application and Petition is frivolous, an abuse of the Court process, and is intended to derail the by-election. He requests this Court to dismiss the entire Petition and application with costs.
27. Vide Court directions dated 25th November 2025, this Court directed the parties to canvass the application dated 24th November 2025 and 25th November 2025 by way of oral submissions. The Respondents had prior to that filed their written submissions to the applications.
D. SUBMISSIONS
Petitioners Submissions
28. The Petitioners’ counsels’ submissions were that, the Respondents unilaterally changed the tallying centre from Musese CDF Hall to Kisiwa Technical Institute without conducting public participation and without informing the petitioners of the said change. Further, that no reasons were assigned for the sudden change of the tallying centre in a period of 5 days to the by-election.
29. It was submitted that the gazettement of Musese CDF Hall as a tallying centre created a legitimate expectation upon the petitioners that the tallying of the votes will be conducted at that Musese CDF Hall.
30. The Petitioners posit that the abrupt change of the tallying centre will compromise the election contrary to the provisions of Article 81 and 86 of the Constitution of Kenya 2010. Further, that IEBC is a public organ that is funded by tax payers’ money and is duty bound to exercise its mandate within the confines of legislation and the Constitution of Kenya 2010 and is thus subject to scrutiny and oversight by the voters in whom lies the sovereign power as enshrined under Article 1 of the Constitution. On the same vein IEBC is obligated to uphold national values as prescribed under Article 10 of the Constitution of Kenya 2010 which include participation of the people, good governance, integrity, transparency and accountability.
31. The Petitioners have cited the case of Mohammed Ibrahim Abdi -vs- IEBC & 2 Others ( 2017) eKLR where in circumstances that they say were pari materia to the current scenario, the court quashed a gazette notice that changed the tallying Centre for Mandera North Constituency election.
32. The Petitioners submit that the attendance register of meetings is not minutes of resolutions to affect a change of the tallying centre. Further that the change was shrouded in mystery and was a state secret.
33. The case of Raila Amollo Odinga -vs- IEBC (Petition No 1 of 2017) was also cited on the need for accuracy and verifiability of an election process.
34. As regard the alleged threats of violence as alleged to by the Respondents in the replying affidavit and supplementary relying affidavit of Henry Bahati Lumiti, it is submitted by the petitioners that the petitioner in petition no E026/2025 is not the speaker in the videos that have been produced and no evidence of an occurrence book report nor arrest of any individual has been adduced and that in any event the National security organs are duty bound to provide security.
35. The Petitioners submit that the reason advanced by the Respondents that Musese CDF is controlled by the area member of parliament who supports one of the candidates and therefore there is partisan influence, is neither here nor there as Kisiwa Technical Institute will favour one candidate viz a viz, the other candidates.
36. It is also posited that students at Kisiwa Technical Institute are currently taking their examination and the holding of the tallying exercise at the institution will disrupt their examinations.
37. The Petitioners submit that their political rights as envisaged under Article 38(2) have been infringed upon by the Respondents. Further that regulation 84(2) of the Election (General) regulation (2012) provides that a tallying Centre must be in a public building that is as close as possible to the voters. That presidential election tallying must be in the capital city while for constituents it is at the County headquarters. In the same vein, it is submitted that for Ward elections, the tallying centre must be situated within the ward and any deviation must be explained and in the absence of any explanation being given, a presumption arises that the change of the tallying centre was made in bad faith.
38. On the issue of prejudice, the Petitioners submit that if the Respondents are convinced that the election is likely to be marred by insecurity then the 2nd Respondent ought to cancel the election all together or move it elsewhere otherwise it would beat logic to go and tally votes in a neutral and supposed safe place when the voters are left to die due to anticipated violence.
1st and 2nd Respondents’ submissions
39. It is the 1st and 2nd Respondents’ submissions that the 2nd Respondent has the exclusive mandate under article 88(4) of the constitution of Kenya 2010 and under regulation 84 of the elections (General) regulation 2012 to designate tallying centres, vary or change such centres and to take any measures necessary to ensure orderly conduct of elections. The case of IEBC -vs- Maina Kiai & 5 others (2017) eKLR is cited to support the position that Courts do not micromanage the election process and will only intervene where there is illegality, irrationality or procedural impropriety.
40. It is the 1st and 2nd Respondents position that it followed due process prior to the change of the tallying centre by holding stakeholders’ consultations on 4th November 2025, after security concerns were raised about the neutrality and accessibility of Musese CDF Hall, in a security meeting held on 31st October 2025, which prompted a request for a change of the tallying centre by the 1st Respondent to the 2nd Respondent specifically due to intelligence report, tensions and threats from the area member of parliament of his intentions to torch IEBC offices. That the 2nd Respondent reviewed the situation and acceded to that request vide a gazette notice published on 21st November 2025, thus de-gazetting Musese CDF Hall and gazetting Kisiwa Technical Institute as the tallying centre.
41. As regards the question whether the Petitioners and other stakeholders were consulted, the 1st and 2nd Respondents maintain that the Petitioners and other stake holders were present and participated in a meeting held on 4th November 2025, as evident from the attendance register and that 26 stakeholders were in attendance and that the Petitioners did not raise any objection to the deliberations made thereat.
42. The 1st and 2nd Respondents maintain that the Petitions herein filed by two of the parties who participated in the consultative meetings, are an afterthought whose sole purpose is to detail the by-election slated for the 27th November 2025.
43. On the prayer for issuance of injunctive relief, it is the 1st and 2nd Respondents position that such orders can only issue in instances where the applicants demonstrate violation of rights by citing the specific provisions of the constitution that are said to have been breached and the manner in which the breach has happened and that conservatory orders cannot issue on the basis of speculation and apprehension. The 1st and 2nd Respondents submit that the Petitioners have not adduced proof of any violation, prejudice and/or any unlawful action by the 1st and 2nd Respondents.
44. On the issue of prejudice, it’s the 1st and 2nd Respondents case that grant of the orders sought in the Petitioners applications will highly prejudice the election process as all the preparations for the election are complete; that all returning officers are under instructions to return forms 36A to Kisiwa Technical Institute tallying centre for verification, aggregation, announcement, declaration of the winner and transmission of the final results to the National tallying centre. Further, that all equipments and systems have been set up at Kisiwa Technical Institute.
45. The Respondents have impugned the jurisdiction of this court to grant the prayers sought given that the Petitioners have approached this court by way of Constitutional petitions instead of by invoking the judicial review jurisdiction of this court.
46. The 1st and 2nd Respondents maintain that the change of the tallying centre was done legally, procedurally and that stakeholder’s participation was duly conduct prior to the change. Further, the change was informed by the need to ensure security, neutrality and the integrity of the scheduled by election. The 1st and 2nd Respondents thus pray that the applications herein be dismissed for being frivolous and in abuse of the court process.
E. ISSUES FOR DETERMINATION
47. The following are the issues are for determination:
a. Does this court have the jurisdiction to grant the prayers sought?
b. Is the selection of a tallying centre a prerogative of the 2nd Respondent?
c. Was public participation conducted prior to the change of the tallying Centre.
d. Would the petitioners and voters of Kabuchai/Chwele suffer prejudice with the movement of the tallying centre?
F. ANALYSIS AND DETERMINATION
a. As to whether this court has the jurisdiction to grant the orders sought, I do find solace in the provisions of article 23 (3) of the Constitution of Kenya which mandates this court to grant the orders craved for by the Petitioners.
b. Is the selection of a tallying centre a prerogative of the 2nd Respondent?
48. Regulation 83 of Election (General) Regulation,2012 provides that tallying is a collation of the final results from each polling station in a constituency for election of Member of National Assembly and Member of County Assemble. The said regulation provides as follows :
“83 (1) Immediately after the results of the poll from all polling stations in a constituency have been received by the Returning Officer, the Returning Officer shall, in the presence of candidates or agents and observers, if present –
a) tally the final results from each polling station in a constituency for the election of a member of the National Assembly and members of the County Assembly;
b) disregard the results of the count of a polling station where the total valid votes exceed the number of registered voters in that polling station;
c) disregard the results of the count of a polling station where the total votes exceed the total number of voters who turned out to vote in that polling station;
d) collate and publicly announce to the persons present the results from each polling station in the constituency for the election of the President, county Governor, senator and county women representative to the National Assembly;
e) complete the relevant Form 35B and 36B for the respective elective position set out in the Schedule in which the returning officer shall declare, as the case may be, the –
i. name of the respective electoral area;
ii. total number of registered voters;
iii. votes cast for each candidate or referendum side in each polling station;
iv. number of rejected votes in each polling station;
v. aggregate number of votes cast in the respective electoral area; and
vi. aggregate number of rejected votes;
f) Sign and date the relevant forms and publicly declare the results for the position of –
i. member of County assembly;
ii. member of National assembly; and
g) Issue certificates to persons elected in the county assembly and National Assembly Elections in Forms 36C and 35C respectively set out in the Schedule;
h) Deliver to the county returning officer the collated results for the election of the county Governor, senator and county women representative to the National Assembly; and
i) Deliver to the Chairperson of the Commission the collated results for the election of the president of the national tallying centre.
(4) The Chairperson of the Commission shall tally and verify the results received at the National tallying centre.”
49. Regulation 84 of Election (General) Regulation, 2012 provides that a tallying centre is a venue gazetted by the Commission for the purpose of tallying. In Regulation 84(2) requirements for selecting a tallying centre are stated as –
“84(2) A tallying centre shall be selected subject to the following requirements –
a) The presidential elections tallying centre shall be located in Nairobi;
b) The county tallying centre shall be located at the county headquarters;
c) The constituency tallying centre shall be located at the constituency or district headquarters;
50. d) All tallying centres shall be located at public buildings.”
51. In case of selection in the constituency tallying centre it shall be located in the constituency or district headquarters and that they shall all be located at a public building and it is only the 2nd Respondent herein that has the prerogative to select the said tallying centre. This was duly demonstrated pursuant to Gazette Notice No. 16966 on 21st November 2025 in Kenya Gazette Vol. CXXVII-No. 237.
c. Was public participation conducted prior to the change of the tallying centre?
52. Public participation is enshrined in the Constitution of Kenya in Article 1, where it is stated that the sovereign power belongs to the people of Kenya and the people may exercise their sovereign power either directly or through their democratically elected representatives. Article 10 (2) (a) enshrines the right of participation of the people as a national value. Section 26 of the Independent Electoral and Boundaries Commission Act Chapter 7 C of the Laws of Kenya provides that IEBC must conduct public participation by providing that :
“ In performance of it’s functions, it shall not be subjected to the direction or control of any person or authority, but shall observe the principle of public participation ad the requirement for consultation with stakeholders.”
53. The right to participate in public affairs, voting rights and the right
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