Introduction
1. Before this Court for determination is the Notice of Motion dated 5th February 2026, brought under Articles 1, 2, 3, 20, 22, 23 and 258 of the Constitution of Kenya, 2010, and other enabling law. The Application is supported by the affidavit of Gilbert C. Njoroge, deposed to on 5th February 2026, to which Exhibit “GCN-1” is annexed. The Petitioner/Applicant seeks the following orders:
“1) spent
2) THAT pending the hearing and determination of the Notice of Motion and the Petition, the Honourable Court does hereby issue:
a) Conservatory orders against the Respondent, its officials, staff and representatives, barring them from conducting the by-elections slated for the 26th day of February 2026, for Member of National Assembly for Isiolo South Constituency and Member of County Assembly for Muminji Ward and Evurore Ward in Mbeere North Constituency, Embu County and West Kabras Ward, Malava Constituency, Kakamega County;
b) Conservatory orders against the Respondent, its officials, staff and representatives, barring the Respondent from utilizing/deploying M/s Smartmatic International Holdings B.V’s electoral technology for the testing, commissioning, support and maintenance of the Kenya Integrated Election Management System (KIEMS), in the conduct of the by-elections scheduled for 26th day of February 2026, for Member of National Assembly for Isiolo South Constituency and Member of County Assembly for Muminji Ward and Evurore Ward in Mbeere North constituency, Embu County and West Kabras Ward, Malava Constituency, Kakamega county;
c) Conservatory orders against the Respondent, its officials, staff and representatives barring them from conducting continuous voter registration and revision of the Voter Register by use of the election technology systems provided by M/s Smartmatic International Holdings B.V;
d) Conservatory orders against the Respondent, its officials, staff and representatives barring them from giving access to data contained in the Integrated Population Registration Service;
3. THAT pending the hearing and determination of this Petition, Conservatory orders be hereby issued against the Respondent, its officials, staff and representatives, barring the Respondent from utilizing/deploying M/s Smartmatic International Holdings B.V.’s electoral technology for the testing, commissioning, support and maintenance of the Kenya Integrated Election Management System (KIEMS), in the conduct of the August 2027 General Elections.
4. THAT Conservatory orders do hereby issue against the Respondent pending the hearing and determination of this Petition, barring them from sharing and/or giving access to their database, including the Register of Voters and all sensitive data, including biometric data, residence, gender, and marital status, to M/s Smartmatic International Holdings B.V., including the management of such data by any of the software applications belonging to M/s Smartmatic International Holdings B.V.”
2. The Respondent and the 2nd Interested Party objected at the threshold to both the Application and the Petition, contending that this Court lacks jurisdiction to entertain the matter on any ground, whether by reason of res judicata, the doctrines of exhaustion and ripeness, or the absence of a demonstrable constitutional violation. The 4th Interested Party fully supports the Petitioner's Application.
3. The Respondent's Preliminary Objection dated 18th February 2026 raises three pure points of law.
(a) That the Petition and Application are res judicata, the issues concerning the integrity, security, verifiability and transparency of the Kenya Integrated Election Management System (KIEMS) and the Result Transmission System (RTS) having been substantively, directly and conclusively determined by the Supreme Court in the 2022 consolidated Presidential Election Petition, such that entertaining them afresh would occasion a violation of Article 163(7) of the Constitution of Kenya, 2010;
(b)That the Petition and Application offend the doctrines of exhaustion of alternative remedies and ripeness, in that Parliament has established a comprehensive electoral dispute resolution framework comprising the IEBC Dispute Resolution Committee under section 74 of the Elections Act and section 4(e) of the IEBC Act, and the registration-officer/appeal mechanism under sections 11 and 12 of the Elections Act; and
(c) That the Petitioner has not met the threshold for the grant of conservatory orders, and that, in any event, the orders sought would constitute an impermissible judicial intrusion into the constitutional independence of the Commission guaranteed under Article 249 of the Constitution of Kenya, 2010.
4. The 2nd Interested Party’s Notice of Preliminary Objection dated 13th February 2026 associates itself with the Respondent's objection and further states that the Petitioner has failed to exhaust
(a)The IEBC Dispute Resolution Committee mechanism under Rules 4, 7, 8, 9, 11, 12 and 13 of the Rules of Procedure on Settlement of Disputes (Legal Notice 139 of 2012), read with Article 88(4) of the Constitution, in respect of the register-of-voters grievances;
(b)The registration-officer/appellate route under sections 11 and 12 of the Elections Act read with Regulation 17 of the Elections (Registration of Voters) Regulations, it being noted additionally that the sixty-day statutory bar preceding a by-election had already commenced running by 26th December 2025;
(c) The Public Procurement Administrative Review Board established under the Public Procurement and Asset Disposal Act, as the first port of call for grievances touching on the extension of the Smartmatic contract; and
(d)The Office of the Data Protection Commissioner, under section 56 of the Data Protection Act and regulation 4 of the Data Protection (Complaint Handling Procedures and Enforcement) Regulations, in respect of the data-protection grievances concerning the Register of Voters.
5. The 2nd Interested Party further reiterated the res judicata objection by reference to the Supreme Court's 2022 determination, and contended, in the alternative, that the Petitioner has not met the threshold set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR for the grant of conservatory orders.
6. The dispute arose against the backdrop of by-elections scheduled for 26th February 2026 (now past) for the seats of Member of the National Assembly for Isiolo South Constituency and Member of the County Assembly for Muminji, Evurore and West Kabras Wards, and the Respondent's continued deployment of electoral technology supplied by M/S Smartmatic International Holdings B.V. under a contract dated 25th November 2021. The Petitioner, a citizen and registered voter, contends that the Respondent's conduct of voter registration, its management of the Register of Voters, and its use of the impugned electoral technology offend Articles 1, 10, 35, 38, 81, 82, 86 and 88 of the Constitution of Kenya, 2010. The by-elections have since been held; this Ruling addresses their effect on the specific prayers of the Notice of Motion at the tail end.
The Responses of the Respondents
7. The Petitioner objects to both Preliminary Objections. He contends that the 2022 consolidated Presidential Election Petition was determined exclusively within the special jurisdiction conferred on the Supreme Court by Article 140 of the Constitution of Kenya, 2010, in respect of the Presidential election alone, and cannot foreclose new questions of constitutional interpretation properly brought before the High Court under Article 165(3)(b) and (d) concerning continuous voter registration, source-code and audit-log access, and the conduct of constituency- and county-level elections.
8. He relies primarily on Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR for the proposition that a mere reference to a past election does not, without more, bring a matter within the purview of res judicata, and on In the Matter of the Interim Independent Electoral Commission [2011] eKLR for the proposition that the High Court's constitutional jurisdiction is not ousted merely because the Supreme Court could arguably also pronounce on cognate questions.
9. On exhaustion and ripeness, the Petitioner contends that the IEBC Dispute Resolution Committee's mandate under Rules 5 and 7 of the Rules of Procedure on Settlement of Disputes is confined to nomination disputes and objections to the registration of specific named voters, and does not extend to a systemic constitutional challenge to the architecture of the electoral technology or to the transparency of the Register as a whole.
10. He relied on Coalition for Reform and Democracy (CORD) & 2 Others v Republic of Kenya [2015] eKLR and William Odhiambo Ramogi & 2 Others v Attorney General & 6 Others [2018] eKLR to support the proposition that the doctrines of ripeness and exhaustion yield when a party pleads a threatened violation of the Constitution, and that a threat of contravention, such as the imminent deployment of unaudited technology in the 26th February 2026 by-elections, is itself sufficient to found jurisdiction without awaiting an accomplished breach.
11. On the merits of the Application, the Petitioner contends that the Gatirau Peter Munya threshold is met, relying substantially on the exhibited KPMG audit material, in particular its documented findings on duplicate and invalid voter identification records and on deceased, convicted, and unsound-mind persons remaining on the Register, as establishing a prima facie case, and submits that the balance of convenience and public interest favour preservation of the status quo pending determination of the Petition.
The 4th Interested Party's response
12. The 4th Interested Party filed written submissions and a Replying Affidavit in support of the Application. It contends that the Petitioner has raised a serious and arguable prima facie case within the meaning of Mrao Limited v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, that the by-elections proceeding in the absence of conservatory orders would render the Petition nugatory by creating an irreversible fait accompli, and that the balance of convenience favours the suspension of the impugned processes pending full hearing, relying on Centre for Rights Education & Awareness (CREAW) & Another v Speaker of the National Assembly & 2 Others [2017] eKLR and Coalition for Reform and Democracy (CORD) & Another v Republic of Kenya & Another [2015] eKLR.
14. Directions on the Notice of Motion application were given on 9th February 2026, for the exchange of affidavits and written submissions on an expedited basis, given the proximity of the scheduled by-elections. The 2nd Interested Party filed Notice of Preliminary Objection dated 13th February 2026, together with a Replying Affidavit dated 16th February 2026, opposing the Application. The Respondent filed its Replying Affidavit together with a Notice of Preliminary Objection dated 20th February 2026.
15. By consent of the parties, recorded before the Court, it was directed that the Preliminary Objections be canvassed together with the substantive merits of the Notice of Motion Application, on the basis that a number of the grounds urged in the Preliminary Objections are interwoven and, to a degree, overlap. The Court has accordingly had the benefit of comprehensive written submissions filed herein.
The Submissions of the Parties
16. Counsel for the Petitioner submitted at length that the res judicata plea is misconceived because the five conditions identified in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 (KLR) and Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] KECA 102 (KLR) were absent or not met. These conditions, namely similarity of the matter in issue, parties, title, concurrence of jurisdiction, and finality of the prior decision, were not met, principally because the Petitioner was not a party to the 2022 Presidential Election Petition and because the subject matter is not identical. The 2022 Petition concerned the validity of a specific Presidential election under the sui generis jurisdiction in Article 140, whereas the instant Petition raises freestanding questions of constitutional interpretation concerning continuous voter registration, publication obligations under section 6(1) of the Elections Act, and source-code and audit-log access rights, none of which were pleaded, argued or decided in 2022.
17.It was further submitted, relying on Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), that the High Court's jurisdiction under Article 165(3)(d) of the Constitution of Kenya, 2010 to interpret the Constitution and to test the constitutionality of statutory provisions is not ousted by the mere fact that the Supreme Court could, in a different proceeding, touch upon overlapping facts. Counsel urged that the doctrines of ripeness and exhaustion must yield where, as here, the pleadings disclose a threatened violation of the Bill of Rights that is neither academic nor hypothetical, given the imminence of the 26th February 2026 by-elections and the continuing use of the impugned technology in ongoing voter registration.
18. On the other hand, Counsel for the Respondent submitted that the doctrine of res judicata operates as a jurisdictional bar and not merely a defence on the merits, such that once its elements are established, the Court is divested of jurisdiction and must, in the words of the Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), down its tools. It was submitted that the Supreme Court in the 2022 consolidated Presidential Election Petition conducted an extensive ICT scrutiny of the KIEMS and RTS architecture, examined server logs and audit trails, and made a definitive finding, binding on all other courts by operation of Article 163(7) of the Constitution of Kenya, 2010, that the electoral technology met constitutional thresholds of integrity, security, verifiability and transparency, and that no evidence of unauthorized access, manipulation or systemic compromise had been established.
19. On exhaustion, it was submitted that sections 11 and 12 of the Elections Act, read with Regulation 17 of the Elections (Registration of Voters) Regulations, establish a comprehensive and specialized statutory scheme for the resolution of voter-registration disputes, with appeals in the first instance to the Principal Magistrate's Court and, thereafter, only on matters of law, to the High Court; and that this Court's jurisdiction in that regard is appellate and circumscribed rather than original.
20. On the merits, it was submitted that the Petitioner has tendered no forensic audit, expert affidavit or penetration-test evidence capable of displacing the presumption of regularity attaching to the Commission's conduct, and that the Kenyan electoral model is in any event hybrid in character. Biometric identification coupled with manual, physically signed statutory result forms as the primary record of the vote such that even an unproven technological anomaly would not occasion irreversible harm capable of rendering the Petition nugatory.
21. Counsel for the 2nd Interested Party associated themselves with the Respondent's submissions on res judicata and added a further, distinct exhaustion argument grounded in the specialized jurisdiction of the Public Procurement Administrative Review Board over disputes concerning the extension of the Smartmatic contract, and the jurisdiction of the Data Protection Commissioner over complaints concerning the processing of personal data in the Register of Voters. Reliance was placed on Mirambo & Another v Independent Electoral and Boundaries Commission & Another; Smartmatic International Holdings BV & Another (Interested Parties) [2022] eKLR and on Speaker of the National Assembly v Karume [1992] eKLR for the proposition that where the Constitution or statute prescribes a specific procedure for redress of a particular grievance, that procedure must be strictly followed to the exclusion of a direct constitutional petition.
22. Counsel for the 4th Interested Party urged the Court to find that a strong prima facie case had been demonstrated, that the by-elections proceeding without resolution of the transparency concerns raised would create an irreversible fait accompli rendering the Petition nugatory, and that the balance of convenience and the public interest in electoral integrity favoured the grant of conservatory orders pending full hearing.
23. I have considered the Application, the responses thereto as well as the written and oral submissions of the parties. From the foregoing, the following issues arise for determination:
(i) Whether the Petition and Application dated 5th February 2026 are res judicata;
ii) Whether the Petition and Application dated 5th February 2026 offend the doctrines of exhaustion and ripeness; and
(iii) Whether the Petitioner has met the threshold for the grant of conservatory orders.
Analysis and Determination
Whether the Petition and Application dated 5th February 2026 are res judicata
24. Section 7 of the Civil Procedure Act, together with the jurisprudence in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 (KLR) and Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] KECA 102 (KLR), require the objecting party to establish, cumulatively: that the matter directly and substantially in issue is the same; that the parties are the same or litigate under the same title; that the prior court was competent; and that the prior decision was final and on the merits.
25. Applying that test, this Court finds that the objection succeeds in part and fails in part. It succeeds to the extent that the Petition and Application seek a renewed, general interrogation of the integrity, security, verifiability, accountability and transparency of the KIEMS and RTS architecture as such, the question whether the Smartmatic-supplied electoral technology, in its general design and operation, satisfies the constitutional thresholds in Articles 81 and 86 of the Constitution of Kenya, 2010. That precise question was directly and substantially in issue in, and was conclusively determined by the Supreme Court in the 2022 consolidated Presidential Election Petition, following an extensive ICT scrutiny process in which the Court examined server access, audit logs and system architecture and found no credible evidence of systemic compromise.
26.The parties, while not identical in name, litigate under the same title within the meaning of the doctrine of res judicata. The 2022 Petition was brought, in material part, as a representative and public-interest challenge to the same electoral technology on behalf of the Kenyan electorate generally, of whom the Petitioner is one; and by operation of Article 163(7) of the Constitution of Kenya, 2010 that finding binds this Court. To permit re-litigation of the general suitability of the same technology, on substantially the same class of allegation, would offend both the doctrine of res judicata and the constitutional hierarchy of courts, as was emphasized in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR and Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR).
27.The objection fails, however, in relation to those aspects of the Petition that are not, on a fair reading, the same matter as that previously determined. The Court is guided here by the Court of Appeal's position in Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR) that mere reference to a past election, or an overlap in the underlying factual subject matter, does not without more attract res judicata; what must be shown is that the particular issue was directly and substantially in issue in the former proceeding.
28.The instant petition raises the following issues that were not before the Supreme Court in 2022: first, the question whether continuing, non-episodic access to source code and audit logs by political parties, candidates and accredited observers is constitutionally required under Articles 81(e), 86(a) and 88(4)(h), as distinct from the retrospective, court-ordered scrutiny that was undertaken in 2022; second, the question whether the Respondent's publication practices in respect of the Register of Voters specifically, the publication of particulars of voters transferred between registration centres ahead of the 26th February 2026 by-elections comply with section 6(1) of the Elections Act and Articles 38 and 81 of the Constitution of Kenya, 2010; and third, the question whether data generated in the course of voter registration, and the role of Smartmatic personnel in the 2025/2026 deduplication exercise, engage the Data Protection Act, 2019 in a manner not previously considered. These are prospective, forward-looking questions tied to the specific by-elections of 26th February 2026 and to conduct occurring after the 2022 Petition was determined; they were neither pleaded nor could have been pleaded in 2022, and the Supreme Court's finality on the general suitability of the technology as it then stood cannot, without more, be stretched to foreclose them.
29.The res judicata objection therefore succeeds only in part. The Petitioner is barred from relitigating the Supreme Court's 2022 finding that the KIEMS/RTS architecture meets the constitutional thresholds of integrity, security, verifiability and transparency under Articles 81 and 86 of the Constitution of Kenya, 2010. The objection is dismissed in all other respects.
Whether the Petition and Application dated 5th February 2026 offend the doctrines of exhaustion and ripeness
30.The doctrine of exhaustion, grounded in Article 159(2)(c) of the Constitution of Kenya, 2010 ordinarily requires a litigant to resort to a specialized statutory mechanism before invoking the original jurisdiction of this Court, save where the exceptions recognised in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] KEHC 9501 (KLR) apply.
31.The Court finds that the exhaustion objection succeeds insofar as the Petitioner impugns the propriety of the extension of the Smartmatic contract of 25th November 2021 as a matter of procurement law, that grievance falls squarely within the specialized jurisdiction of the Public Procurement Administrative Review Board under sections 167 and 173 of the Public Procurement and Asset Disposal Act, as was recognised in the analogous proceedings in Mirambo & another v Independent Electoral and Boundaries Commission & another; Smartmatic International Holdings BV & another (Interested Parties) [2022] KEHC 11763 (KLR). No satisfactory explanation has been given for bypassing that specialized statutory forum, which is equipped to determine the legality of procurement decisions, including contract extensions.
32. Secondly, insofar as the Petitioner, as a data subject, claims about the manner of processing, storage and third-party access to personal data within the Register of Voters, section 56 of the Data Protection Act, 2019 and regulation 4 of the Data Protection (Complaint Handling Procedures and Enforcement) Regulations vest the Office of the Data Protection Commissioner with a specific complaints-handling mandate over such issues, and there is no suggestion placed before the Court by the Petitioner that resort to that forum would be inadequate or futile.
33. However, the objection fails in relation to the rest of the Petitioner's claims. The mandate of the IEBC Dispute Resolution Committee under Rules 4, 5, 7 and 8 of the Rules of Procedure on Settlement of Disputes is, on a careful reading, confined to discrete, individuated disputes and does not extend to a systemic constitutional challenge to the transparency of the electoral system, nor could it competently determine the constitutional questions raised under Articles 81, 82 and 86 of the Constitution of Kenya, 2010.
34. Similarly, the appellate route under sections 11 and 12 of the Elections Act concerns the qualification and inclusion of individual voters, and is, in any event, as the 2nd Interested Party points out, time-barred by the sixty-day statutory bar preceding the 26th February 2026 by-elections; it would be incongruous to fault the Petitioner for failing to exhaust a remedy that the same objecting party accepts is no longer available to him.
35. As to ripeness, the Court accepts, consistently with Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & another; Director of Public Prosecution & 6 others (Interested Parties); Law Society of Kenya & another (Amicus Curiae) [2015] KEHC 7074 (KLR) that a threatened contravention of the Constitution here, the imminent conduct of by-elections using technology whose transparency is impugned, and continuing voter registration under the same architecture is sufficient to found a live and justiciable controversy without the Petitioner being required to wait for an accomplished violation.
Whether the Petitioner has met the threshold for the grant of conservatory orders
36. Before applying that threshold, the Court notes that the by-elections of 26th February 2026 have since been held. Prayers 2(a) and 2(b) of the Notice of Motion application, which sought to restrain the Respondent from conducting the by-elections and from utilizing the Smartmatic-supplied technology in their conduct, have accordingly been overtaken by events. A conservatory order cannot restrain an event that has already occurred, and those two prayers are accordingly moot. See Borowski v Canada (Attorney General) [1989] 1 SCR 342, applied in Kimulu v Kiilu [2025] KEELC 3395 (KLR). The Court therefore does not apply the threshold in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR to prayers 2(a) and 2(b).
37. The analysis that follows accordingly confines itself to prayers 2(c), 2(d), 3 and 4, which remain live. The Petition itself is not rendered moot by the by-elections. The constitutional questions raised on source-code and audit-log access, and on compliance with the Register-publication requirements are of a recurring character, certain to arise again in continuous voter registration and in the August 2027 General Election, and the public interest favours their determination notwithstanding that these particular by-elections have passed.
38. In respect of the surviving prayers, the applicable principles are settled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. The Applicant must demonstrate a prima facie case with a likelihood of success; that, absent the order, the Petition is at risk of being rendered nugatory; that the balance of convenience favours the grant of the order; and that the public interest so warrants the grant of the order.
39. Having found hereinabove that the general suitability of the KIEMS/RTS technology is res judicata, the residual and live prima facie case available to the Petitioner is correspondingly narrower than that pressed in submissions. It is confined to the questions whether the Respondent is constitutionally obliged to grant standing, non-episodic access to source code and audit logs to political parties and accredited observers, and whether the Register of Voters has been published as required by section 6(1) of the Elections Act and Article 81(e).
40. On the material before the Court, the Petitioner has, at this interlocutory stage, raised a case that is neither frivolous nor merely speculative on these narrower questions. The arguability of the surviving claims rests on matters properly before the Court. The exhibited excerpt of KPMG’s Final Audit Report on the Register of Voters records, among other things, 481,711 registrations with duplicate or missing identification numbers, 164,269 registrations with an invalid number as compared to the National Registration Bureau, and 246,465 deceased voters still bearing an identification number in the Register as at June 2022, together with an incomplete response from the relevant government departments to the Commission’s own requests for up-to-date lists of persons convicted of electoral offences and persons declared to be of unsound mind.
41. These are genuine, if dated, findings bearing on the substance of the Petitioner’s transparency and accuracy concerns, though the Court is mindful that the exhibited excerpt does not extend to the report’s later sections on database and systems controls or on the Commission’s own response to these findings, and that the report expressly restricts reliance on, and disclosure of, its contents to the Commission.
42. The Respondent’s Replying Affidavit further concedes that the Register has not been published in the manner contended for by the Petitioner, resting instead on a construction of "publication" that itself falls to be tested at trial; and the Notice of Motion’s pleaded and unrebutted assertion that the Respondent’s technology contractor has declined to grant access to source code and audit logs, citing intellectual property, similarly falls to be tested at trial. This is sufficient to cross the first, modest threshold of arguability; it is not, however, sufficient to establish the broader case advanced for a blanket bar on the Respondent’s use of Smartmatic-supplied technology in continuous voter registration, which the Court has found to be substantially foreclosed by res judicata and otherwise unsupported by any forensic or expert evidence.
43. On the nugatory effect, the Court is not persuaded that the Petition, so narrowed, would be rendered nugatory absent interim conservatory relief on the surviving prayers. The by-elections of 26th February 2026 have already been conducted using the impugn
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1. Before this Court for determination is the Notice of Motion dated 5th February 2026, brought under Articles 1, 2, 3, 20, 22, 23 and 258 of the Constitution of Kenya, 2010, and other enabling law. The Application is supported by the affidavit of Gilbert C. Njoroge, deposed to on 5th February 2026, to which Exhibit “GCN-1” is annexed. The Petitioner/Applicant seeks the following orders:
“1) spent
2) THAT pending the hearing and determination of the Notice of Motion and the Petition, the Honourable Court does hereby issue:
a) Conservatory orders against the Respondent, its officials, staff and representatives, barring them from conducting the by-elections slated for the 26th day of February 2026, for Member of National Assembly for Isiolo South Constituency and Member of County Assembly for Muminji Ward and Evurore Ward in Mbeere North Constituency, Embu County and West Kabras Ward, Malava Constituency, Kakamega County;
b) Conservatory orders against the Respondent, its officials, staff and representatives, barring the Respondent from utilizing/deploying M/s Smartmatic International Holdings B.V’s electoral technology for the testing, commissioning, support and maintenance of the Kenya Integrated Election Management System (KIEMS), in the conduct of the by-elections scheduled for 26th day of February 2026, for Member of National Assembly for Isiolo South Constituency and Member of County Assembly for Muminji Ward and Evurore Ward in Mbeere North constituency, Embu County and West Kabras Ward, Malava Constituency, Kakamega county;
c) Conservatory orders against the Respondent, its officials, staff and representatives barring them from conducting continuous voter registration and revision of the Voter Register by use of the election technology systems provided by M/s Smartmatic International Holdings B.V;
d) Conservatory orders against the Respondent, its officials, staff and representatives barring them from giving access to data contained in the Integrated Population Registration Service;
3. THAT pending the hearing and determination of this Petition, Conservatory orders be hereby issued against the Respondent, its officials, staff and representatives, barring the Respondent from utilizing/deploying M/s Smartmatic International Holdings B.V.’s electoral technology for the testing, commissioning, support and maintenance of the Kenya Integrated Election Management System (KIEMS), in the conduct of the August 2027 General Elections.
4. THAT Conservatory orders do hereby issue against the Respondent pending the hearing and determination of this Petition, barring them from sharing and/or giving access to their database, including the Register of Voters and all sensitive data, including biometric data, residence, gender, and marital status, to M/s Smartmatic International Holdings B.V., including the management of such data by any of the software applications belonging to M/s Smartmatic International Holdings B.V.”
2. The Respondent and the 2nd Interested Party objected at the threshold to both the Application and the Petition, contending that this Court lacks jurisdiction to entertain the matter on any ground, whether by reason of res judicata, the doctrines of exhaustion and ripeness, or the absence of a demonstrable constitutional violation. The 4th Interested Party fully supports the Petitioner's Application.
3. The Respondent's Preliminary Objection dated 18th February 2026 raises three pure points of law.
(a) That the Petition and Application are res judicata, the issues concerning the integrity, security, verifiability and transparency of the Kenya Integrated Election Management System (KIEMS) and the Result Transmission System (RTS) having been substantively, directly and conclusively determined by the Supreme Court in the 2022 consolidated Presidential Election Petition, such that entertaining them afresh would occasion a violation of Article 163(7) of the Constitution of Kenya, 2010;
(b)That the Petition and Application offend the doctrines of exhaustion of alternative remedies and ripeness, in that Parliament has established a comprehensive electoral dispute resolution framework comprising the IEBC Dispute Resolution Committee under section 74 of the Elections Act and section 4(e) of the IEBC Act, and the registration-officer/appeal mechanism under sections 11 and 12 of the Elections Act; and
(c) That the Petitioner has not met the threshold for the grant of conservatory orders, and that, in any event, the orders sought would constitute an impermissible judicial intrusion into the constitutional independence of the Commission guaranteed under Article 249 of the Constitution of Kenya, 2010.
4. The 2nd Interested Party’s Notice of Preliminary Objection dated 13th February 2026 associates itself with the Respondent's objection and further states that the Petitioner has failed to exhaust
(a)The IEBC Dispute Resolution Committee mechanism under Rules 4, 7, 8, 9, 11, 12 and 13 of the Rules of Procedure on Settlement of Disputes (Legal Notice 139 of 2012), read with Article 88(4) of the Constitution, in respect of the register-of-voters grievances;
(b)The registration-officer/appellate route under sections 11 and 12 of the Elections Act read with Regulation 17 of the Elections (Registration of Voters) Regulations, it being noted additionally that the sixty-day statutory bar preceding a by-election had already commenced running by 26th December 2025;
(c) The Public Procurement Administrative Review Board established under the Public Procurement and Asset Disposal Act, as the first port of call for grievances touching on the extension of the Smartmatic contract; and
(d)The Office of the Data Protection Commissioner, under section 56 of the Data Protection Act and regulation 4 of the Data Protection (Complaint Handling Procedures and Enforcement) Regulations, in respect of the data-protection grievances concerning the Register of Voters.
5. The 2nd Interested Party further reiterated the res judicata objection by reference to the Supreme Court's 2022 determination, and contended, in the alternative, that the Petitioner has not met the threshold set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR for the grant of conservatory orders.
6. The dispute arose against the backdrop of by-elections scheduled for 26th February 2026 (now past) for the seats of Member of the National Assembly for Isiolo South Constituency and Member of the County Assembly for Muminji, Evurore and West Kabras Wards, and the Respondent's continued deployment of electoral technology supplied by M/S Smartmatic International Holdings B.V. under a contract dated 25th November 2021. The Petitioner, a citizen and registered voter, contends that the Respondent's conduct of voter registration, its management of the Register of Voters, and its use of the impugned electoral technology offend Articles 1, 10, 35, 38, 81, 82, 86 and 88 of the Constitution of Kenya, 2010. The by-elections have since been held; this Ruling addresses their effect on the specific prayers of the Notice of Motion at the tail end.
The Responses of the Respondents
7. The Petitioner objects to both Preliminary Objections. He contends that the 2022 consolidated Presidential Election Petition was determined exclusively within the special jurisdiction conferred on the Supreme Court by Article 140 of the Constitution of Kenya, 2010, in respect of the Presidential election alone, and cannot foreclose new questions of constitutional interpretation properly brought before the High Court under Article 165(3)(b) and (d) concerning continuous voter registration, source-code and audit-log access, and the conduct of constituency- and county-level elections.
8. He relies primarily on Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR for the proposition that a mere reference to a past election does not, without more, bring a matter within the purview of res judicata, and on In the Matter of the Interim Independent Electoral Commission [2011] eKLR for the proposition that the High Court's constitutional jurisdiction is not ousted merely because the Supreme Court could arguably also pronounce on cognate questions.
9. On exhaustion and ripeness, the Petitioner contends that the IEBC Dispute Resolution Committee's mandate under Rules 5 and 7 of the Rules of Procedure on Settlement of Disputes is confined to nomination disputes and objections to the registration of specific named voters, and does not extend to a systemic constitutional challenge to the architecture of the electoral technology or to the transparency of the Register as a whole.
10. He relied on Coalition for Reform and Democracy (CORD) & 2 Others v Republic of Kenya [2015] eKLR and William Odhiambo Ramogi & 2 Others v Attorney General & 6 Others [2018] eKLR to support the proposition that the doctrines of ripeness and exhaustion yield when a party pleads a threatened violation of the Constitution, and that a threat of contravention, such as the imminent deployment of unaudited technology in the 26th February 2026 by-elections, is itself sufficient to found jurisdiction without awaiting an accomplished breach.
11. On the merits of the Application, the Petitioner contends that the Gatirau Peter Munya threshold is met, relying substantially on the exhibited KPMG audit material, in particular its documented findings on duplicate and invalid voter identification records and on deceased, convicted, and unsound-mind persons remaining on the Register, as establishing a prima facie case, and submits that the balance of convenience and public interest favour preservation of the status quo pending determination of the Petition.
The 4th Interested Party's response
12. The 4th Interested Party filed written submissions and a Replying Affidavit in support of the Application. It contends that the Petitioner has raised a serious and arguable prima facie case within the meaning of Mrao Limited v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, that the by-elections proceeding in the absence of conservatory orders would render the Petition nugatory by creating an irreversible fait accompli, and that the balance of convenience favours the suspension of the impugned processes pending full hearing, relying on Centre for Rights Education & Awareness (CREAW) & Another v Speaker of the National Assembly & 2 Others [2017] eKLR and Coalition for Reform and Democracy (CORD) & Another v Republic of Kenya & Another [2015] eKLR.
14. Directions on the Notice of Motion application were given on 9th February 2026, for the exchange of affidavits and written submissions on an expedited basis, given the proximity of the scheduled by-elections. The 2nd Interested Party filed Notice of Preliminary Objection dated 13th February 2026, together with a Replying Affidavit dated 16th February 2026, opposing the Application. The Respondent filed its Replying Affidavit together with a Notice of Preliminary Objection dated 20th February 2026.
15. By consent of the parties, recorded before the Court, it was directed that the Preliminary Objections be canvassed together with the substantive merits of the Notice of Motion Application, on the basis that a number of the grounds urged in the Preliminary Objections are interwoven and, to a degree, overlap. The Court has accordingly had the benefit of comprehensive written submissions filed herein.
The Submissions of the Parties
16. Counsel for the Petitioner submitted at length that the res judicata plea is misconceived because the five conditions identified in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 (KLR) and Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] KECA 102 (KLR) were absent or not met. These conditions, namely similarity of the matter in issue, parties, title, concurrence of jurisdiction, and finality of the prior decision, were not met, principally because the Petitioner was not a party to the 2022 Presidential Election Petition and because the subject matter is not identical. The 2022 Petition concerned the validity of a specific Presidential election under the sui generis jurisdiction in Article 140, whereas the instant Petition raises freestanding questions of constitutional interpretation concerning continuous voter registration, publication obligations under section 6(1) of the Elections Act, and source-code and audit-log access rights, none of which were pleaded, argued or decided in 2022.
17.It was further submitted, relying on Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), that the High Court's jurisdiction under Article 165(3)(d) of the Constitution of Kenya, 2010 to interpret the Constitution and to test the constitutionality of statutory provisions is not ousted by the mere fact that the Supreme Court could, in a different proceeding, touch upon overlapping facts. Counsel urged that the doctrines of ripeness and exhaustion must yield where, as here, the pleadings disclose a threatened violation of the Bill of Rights that is neither academic nor hypothetical, given the imminence of the 26th February 2026 by-elections and the continuing use of the impugned technology in ongoing voter registration.
18. On the other hand, Counsel for the Respondent submitted that the doctrine of res judicata operates as a jurisdictional bar and not merely a defence on the merits, such that once its elements are established, the Court is divested of jurisdiction and must, in the words of the Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), down its tools. It was submitted that the Supreme Court in the 2022 consolidated Presidential Election Petition conducted an extensive ICT scrutiny of the KIEMS and RTS architecture, examined server logs and audit trails, and made a definitive finding, binding on all other courts by operation of Article 163(7) of the Constitution of Kenya, 2010, that the electoral technology met constitutional thresholds of integrity, security, verifiability and transparency, and that no evidence of unauthorized access, manipulation or systemic compromise had been established.
19. On exhaustion, it was submitted that sections 11 and 12 of the Elections Act, read with Regulation 17 of the Elections (Registration of Voters) Regulations, establish a comprehensive and specialized statutory scheme for the resolution of voter-registration disputes, with appeals in the first instance to the Principal Magistrate's Court and, thereafter, only on matters of law, to the High Court; and that this Court's jurisdiction in that regard is appellate and circumscribed rather than original.
20. On the merits, it was submitted that the Petitioner has tendered no forensic audit, expert affidavit or penetration-test evidence capable of displacing the presumption of regularity attaching to the Commission's conduct, and that the Kenyan electoral model is in any event hybrid in character. Biometric identification coupled with manual, physically signed statutory result forms as the primary record of the vote such that even an unproven technological anomaly would not occasion irreversible harm capable of rendering the Petition nugatory.
21. Counsel for the 2nd Interested Party associated themselves with the Respondent's submissions on res judicata and added a further, distinct exhaustion argument grounded in the specialized jurisdiction of the Public Procurement Administrative Review Board over disputes concerning the extension of the Smartmatic contract, and the jurisdiction of the Data Protection Commissioner over complaints concerning the processing of personal data in the Register of Voters. Reliance was placed on Mirambo & Another v Independent Electoral and Boundaries Commission & Another; Smartmatic International Holdings BV & Another (Interested Parties) [2022] eKLR and on Speaker of the National Assembly v Karume [1992] eKLR for the proposition that where the Constitution or statute prescribes a specific procedure for redress of a particular grievance, that procedure must be strictly followed to the exclusion of a direct constitutional petition.
22. Counsel for the 4th Interested Party urged the Court to find that a strong prima facie case had been demonstrated, that the by-elections proceeding without resolution of the transparency concerns raised would create an irreversible fait accompli rendering the Petition nugatory, and that the balance of convenience and the public interest in electoral integrity favoured the grant of conservatory orders pending full hearing.
23. I have considered the Application, the responses thereto as well as the written and oral submissions of the parties. From the foregoing, the following issues arise for determination:
(i) Whether the Petition and Application dated 5th February 2026 are res judicata;
ii) Whether the Petition and Application dated 5th February 2026 offend the doctrines of exhaustion and ripeness; and
(iii) Whether the Petitioner has met the threshold for the grant of conservatory orders.
Analysis and Determination
Whether the Petition and Application dated 5th February 2026 are res judicata
24. Section 7 of the Civil Procedure Act, together with the jurisprudence in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 (KLR) and Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] KECA 102 (KLR), require the objecting party to establish, cumulatively: that the matter directly and substantially in issue is the same; that the parties are the same or litigate under the same title; that the prior court was competent; and that the prior decision was final and on the merits.
25. Applying that test, this Court finds that the objection succeeds in part and fails in part. It succeeds to the extent that the Petition and Application seek a renewed, general interrogation of the integrity, security, verifiability, accountability and transparency of the KIEMS and RTS architecture as such, the question whether the Smartmatic-supplied electoral technology, in its general design and operation, satisfies the constitutional thresholds in Articles 81 and 86 of the Constitution of Kenya, 2010. That precise question was directly and substantially in issue in, and was conclusively determined by the Supreme Court in the 2022 consolidated Presidential Election Petition, following an extensive ICT scrutiny process in which the Court examined server access, audit logs and system architecture and found no credible evidence of systemic compromise.
26.The parties, while not identical in name, litigate under the same title within the meaning of the doctrine of res judicata. The 2022 Petition was brought, in material part, as a representative and public-interest challenge to the same electoral technology on behalf of the Kenyan electorate generally, of whom the Petitioner is one; and by operation of Article 163(7) of the Constitution of Kenya, 2010 that finding binds this Court. To permit re-litigation of the general suitability of the same technology, on substantially the same class of allegation, would offend both the doctrine of res judicata and the constitutional hierarchy of courts, as was emphasized in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR and Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR).
27.The objection fails, however, in relation to those aspects of the Petition that are not, on a fair reading, the same matter as that previously determined. The Court is guided here by the Court of Appeal's position in Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR) that mere reference to a past election, or an overlap in the underlying factual subject matter, does not without more attract res judicata; what must be shown is that the particular issue was directly and substantially in issue in the former proceeding.
28.The instant petition raises the following issues that were not before the Supreme Court in 2022: first, the question whether continuing, non-episodic access to source code and audit logs by political parties, candidates and accredited observers is constitutionally required under Articles 81(e), 86(a) and 88(4)(h), as distinct from the retrospective, court-ordered scrutiny that was undertaken in 2022; second, the question whether the Respondent's publication practices in respect of the Register of Voters specifically, the publication of particulars of voters transferred between registration centres ahead of the 26th February 2026 by-elections comply with section 6(1) of the Elections Act and Articles 38 and 81 of the Constitution of Kenya, 2010; and third, the question whether data generated in the course of voter registration, and the role of Smartmatic personnel in the 2025/2026 deduplication exercise, engage the Data Protection Act, 2019 in a manner not previously considered. These are prospective, forward-looking questions tied to the specific by-elections of 26th February 2026 and to conduct occurring after the 2022 Petition was determined; they were neither pleaded nor could have been pleaded in 2022, and the Supreme Court's finality on the general suitability of the technology as it then stood cannot, without more, be stretched to foreclose them.
29.The res judicata objection therefore succeeds only in part. The Petitioner is barred from relitigating the Supreme Court's 2022 finding that the KIEMS/RTS architecture meets the constitutional thresholds of integrity, security, verifiability and transparency under Articles 81 and 86 of the Constitution of Kenya, 2010. The objection is dismissed in all other respects.
Whether the Petition and Application dated 5th February 2026 offend the doctrines of exhaustion and ripeness
30.The doctrine of exhaustion, grounded in Article 159(2)(c) of the Constitution of Kenya, 2010 ordinarily requires a litigant to resort to a specialized statutory mechanism before invoking the original jurisdiction of this Court, save where the exceptions recognised in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] KEHC 9501 (KLR) apply.
31.The Court finds that the exhaustion objection succeeds insofar as the Petitioner impugns the propriety of the extension of the Smartmatic contract of 25th November 2021 as a matter of procurement law, that grievance falls squarely within the specialized jurisdiction of the Public Procurement Administrative Review Board under sections 167 and 173 of the Public Procurement and Asset Disposal Act, as was recognised in the analogous proceedings in Mirambo & another v Independent Electoral and Boundaries Commission & another; Smartmatic International Holdings BV & another (Interested Parties) [2022] KEHC 11763 (KLR). No satisfactory explanation has been given for bypassing that specialized statutory forum, which is equipped to determine the legality of procurement decisions, including contract extensions.
32. Secondly, insofar as the Petitioner, as a data subject, claims about the manner of processing, storage and third-party access to personal data within the Register of Voters, section 56 of the Data Protection Act, 2019 and regulation 4 of the Data Protection (Complaint Handling Procedures and Enforcement) Regulations vest the Office of the Data Protection Commissioner with a specific complaints-handling mandate over such issues, and there is no suggestion placed before the Court by the Petitioner that resort to that forum would be inadequate or futile.
33. However, the objection fails in relation to the rest of the Petitioner's claims. The mandate of the IEBC Dispute Resolution Committee under Rules 4, 5, 7 and 8 of the Rules of Procedure on Settlement of Disputes is, on a careful reading, confined to discrete, individuated disputes and does not extend to a systemic constitutional challenge to the transparency of the electoral system, nor could it competently determine the constitutional questions raised under Articles 81, 82 and 86 of the Constitution of Kenya, 2010.
34. Similarly, the appellate route under sections 11 and 12 of the Elections Act concerns the qualification and inclusion of individual voters, and is, in any event, as the 2nd Interested Party points out, time-barred by the sixty-day statutory bar preceding the 26th February 2026 by-elections; it would be incongruous to fault the Petitioner for failing to exhaust a remedy that the same objecting party accepts is no longer available to him.
35. As to ripeness, the Court accepts, consistently with Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & another; Director of Public Prosecution & 6 others (Interested Parties); Law Society of Kenya & another (Amicus Curiae) [2015] KEHC 7074 (KLR) that a threatened contravention of the Constitution here, the imminent conduct of by-elections using technology whose transparency is impugned, and continuing voter registration under the same architecture is sufficient to found a live and justiciable controversy without the Petitioner being required to wait for an accomplished violation.
Whether the Petitioner has met the threshold for the grant of conservatory orders
36. Before applying that threshold, the Court notes that the by-elections of 26th February 2026 have since been held. Prayers 2(a) and 2(b) of the Notice of Motion application, which sought to restrain the Respondent from conducting the by-elections and from utilizing the Smartmatic-supplied technology in their conduct, have accordingly been overtaken by events. A conservatory order cannot restrain an event that has already occurred, and those two prayers are accordingly moot. See Borowski v Canada (Attorney General) [1989] 1 SCR 342, applied in Kimulu v Kiilu [2025] KEELC 3395 (KLR). The Court therefore does not apply the threshold in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR to prayers 2(a) and 2(b).
37. The analysis that follows accordingly confines itself to prayers 2(c), 2(d), 3 and 4, which remain live. The Petition itself is not rendered moot by the by-elections. The constitutional questions raised on source-code and audit-log access, and on compliance with the Register-publication requirements are of a recurring character, certain to arise again in continuous voter registration and in the August 2027 General Election, and the public interest favours their determination notwithstanding that these particular by-elections have passed.
38. In respect of the surviving prayers, the applicable principles are settled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. The Applicant must demonstrate a prima facie case with a likelihood of success; that, absent the order, the Petition is at risk of being rendered nugatory; that the balance of convenience favours the grant of the order; and that the public interest so warrants the grant of the order.
39. Having found hereinabove that the general suitability of the KIEMS/RTS technology is res judicata, the residual and live prima facie case available to the Petitioner is correspondingly narrower than that pressed in submissions. It is confined to the questions whether the Respondent is constitutionally obliged to grant standing, non-episodic access to source code and audit logs to political parties and accredited observers, and whether the Register of Voters has been published as required by section 6(1) of the Elections Act and Article 81(e).
40. On the material before the Court, the Petitioner has, at this interlocutory stage, raised a case that is neither frivolous nor merely speculative on these narrower questions. The arguability of the surviving claims rests on matters properly before the Court. The exhibited excerpt of KPMG’s Final Audit Report on the Register of Voters records, among other things, 481,711 registrations with duplicate or missing identification numbers, 164,269 registrations with an invalid number as compared to the National Registration Bureau, and 246,465 deceased voters still bearing an identification number in the Register as at June 2022, together with an incomplete response from the relevant government departments to the Commission’s own requests for up-to-date lists of persons convicted of electoral offences and persons declared to be of unsound mind.
41. These are genuine, if dated, findings bearing on the substance of the Petitioner’s transparency and accuracy concerns, though the Court is mindful that the exhibited excerpt does not extend to the report’s later sections on database and systems controls or on the Commission’s own response to these findings, and that the report expressly restricts reliance on, and disclosure of, its contents to the Commission.
42. The Respondent’s Replying Affidavit further concedes that the Register has not been published in the manner contended for by the Petitioner, resting instead on a construction of "publication" that itself falls to be tested at trial; and the Notice of Motion’s pleaded and unrebutted assertion that the Respondent’s technology contractor has declined to grant access to source code and audit logs, citing intellectual property, similarly falls to be tested at trial. This is sufficient to cross the first, modest threshold of arguability; it is not, however, sufficient to establish the broader case advanced for a blanket bar on the Respondent’s use of Smartmatic-supplied technology in continuous voter registration, which the Court has found to be substantially foreclosed by res judicata and otherwise unsupported by any forensic or expert evidence.
43. On the nugatory effect, the Court is not persuaded that the Petition, so narrowed, would be rendered nugatory absent interim conservatory relief on the surviving prayers. The by-elections of 26th February 2026 have already been conducted using the impugn
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