The High Court has directed the Independent Electoral and Boundaries Commission to grant accredited political parties and election observers access to source code and audit logs relating to continuous voter registration.
The court’s order means accredited political parties and election observers are to get access to these specified technical records for continuous voter registration so they can independently oversight how the system operates and what activity has taken place.
Justice Gregory Mutai issued the order pending the hearing and determination of a petition by petitioner Gilbert Njoroge challenging aspects of the electoral body’s technology and compliance with voter registration requirements.
The court, however, narrowed the scope of the case, ruling that the challenge to the overall suitability of IEBC’s technology had already been decided and could not be raised again.
“The Notice of Motion is allowed only to the extent that the respondent shall, pending the determination of the petition, grant accredited political parties and election observers standing access to the source code and audit logs relevant to continuous voter registration,” the judge ruled.
Justice Mutai said the live issues before the court were whether the IEBC was constitutionally required to grant political parties and accredited observers access to the source code and audit logs, and whether the voter register had been published as required by law.
He added that the surviving case was confined to questions concerning access to the electoral technology and publication of the voter register.
The petitioner relied on excerpts from a KPMG final audit report on the voter register to raise concerns about the accuracy and transparency of the register.
According to the material placed before the court, the audit recorded 481,711 registrations with duplicate or missing identification numbers, while 164,269 registrations had identification numbers that were invalid when compared with records held by the National Registration Bureau.
The report also recorded 246,465 deceased voters who still had identification numbers appearing in the register as of June 2022.
Justice Mutai said the findings, together with incomplete responses from relevant government departments, raised genuine issues concerning the accuracy and transparency of the voter register.
“These are genuine, updated findings, bearing on the substance of the petitioner’s transparency and accuracy concerns,” the judge said.
The court noted, however, that the excerpts presented did not contain all sections of the audit report dealing with database and system controls or the IEBC’s responses to the findings.
The judge also observed that the report contained restrictions on reliance and disclosure of its contents.
On the question of access to the electoral technology, the court said assertions that the IEBC’s technology contractor had declined access to source code and audit logs on intellectual property grounds were matters that would have to be tested at the full hearing.
“This is sufficient to cross the first modest threshold of arguability,” Justice Mutai said.
The judge nevertheless declined to grant broader interim relief against the continued use of the technology.
He noted that the 2026 by-elections had already been conducted using the technology without an order stopping its use.
The court further observed that Kenya’s elections uses a hybrid model (biometric voter identification alongside physical result forms), which can be checked through manual recounts and court oversight.
On whether the petition would be rendered meaningless without wider interim orders, Justice Mutai said he was not persuaded that this would be the case.
The judge also considered the public interest in allowing constitutionally mandated electoral processes to continue, against the petitioner’s interest in transparency.
“The suspension of constitutionally mandated public process is a grave step to be taken only where the case for doing so is clear and compelling,” he said.
In the resulting orders, the court allowed the petition to proceed on the narrower question of access to source code and audit logs and compliance with voter-register publication requirements.
The court struck out the broader challenge to the suitability of the electoral technology on grounds of res judicata (matter already determined).
It also struck out claims concerning the extension of the Smart Party contract and the sharing or processing of voter data for failure to exhaust remedies before the Public Procurement and Administrative Review Board and the Data Protection Commissioner respectively.
The ruling, therefore, does not declare the IEBC technology unsuitable, but gives political parties and accredited observers interim access to specified aspects of the system, while the remaining transparency and voter-register questions proceed to hearing.
Former National Assembly Speaker Justin Muturi has since welcomed the High Court ruling, describing it as a significant development for transparency in Kenya’s electoral process.
“The petition, which was opposed by both the United Democratic Alliance and the IEBC, places renewed emphasis on transparency, accountability and verifiability in Kenya’s electoral process,” he said.
“It underscores the constitutional principle that election data and records must be capable of independent scrutiny where the law permits.”
