The Re-Run Counties: Where Courts Ordered Fresh Elections After 2022

After the 2022 election, Kenyan courts received over 200 election petitions. In a handful of cases, courts nullified results and ordered fresh elections. These re-runs changed winners, cost millions, and revealed the fault lines of Kenya's electoral dispute resolution system.

The Petition Wave

Kenya's 2022 general election produced a flood of election petitions. According to the Judiciary, a total of 242 election petitions were filed across all levels of courts within the constitutionally mandated 28 days after the declaration of results. The breakdown was roughly:

• 1 Presidential petition (dismissed by the Supreme Court)
• 11 gubernatorial petitions
• 15 senatorial petitions
• 21 women representative petitions
• 88 National Assembly (MP) petitions
• 106 MCA petitions

Of these 242 petitions, the vast majority were dismissed. However, courts nullified results and ordered fresh elections in approximately 14 cases, primarily at the MP and MCA levels. These nullifications were based on various grounds: irregularities in vote counting, voter bribery, violence, and non-compliance with electoral laws.

The Major Re-Runs

Several re-run elections attracted national attention:

Kitui Rural Constituency (MP): The High Court nullified the results after finding that the declared winner had not met the constitutional threshold for educational qualifications. The re-run, held in early 2023, saw the original petitioner win by a margin of 4,218 votes. The case highlighted the importance of candidate vetting and the consequences of incomplete IEBC verification.

Rongai Constituency (MP): Results were nullified after the court found evidence of ballot stuffing at 12 polling stations in Menengai and Solai areas. The affected stations showed voter turnout above 98%, a statistical anomaly that the court deemed suspicious. In the re-run, the original winner retained the seat but with a reduced margin.

Kuresoi South Constituency (MP): The election was nullified on grounds of violence and voter intimidation. The court heard testimony from 47 witnesses who described organized groups preventing voters from accessing polling stations in specific wards. The re-run was conducted under heavy security, with 800 police officers deployed for a single constituency.

Multiple MCA Wards: At the ward level, courts nullified results in approximately 9 wards across the country. Common grounds included incorrect tallying (where mathematical errors changed the outcome), ungazetted polling stations (where votes were cast at locations not officially registered by IEBC), and impersonation of election officials.

The Cost of Re-Runs

Each by-election or re-run is an expensive affair. IEBC estimated the cost of conducting a single constituency-level by-election at between KSh 100 million and KSh 250 million, depending on the size and security requirements of the constituency. Ward-level re-runs cost between KSh 30 million and KSh 80 million.

The total cost of post-2022 re-runs was estimated at approximately KSh 1.8 billion. This came on top of the main election's budget of KSh 40.9 billion, effectively adding 4.4% to the total electoral expenditure. Critics argued that better election management and candidate vetting could have prevented many of these re-runs.

Beyond the direct IEBC costs, re-runs impose significant indirect costs: security deployment (Kenya Police estimated spending KSh 320 million on security for post-2022 by-elections), candidate campaign spending, voter time and productivity loss, and the governance vacuum during the petition and re-run period.

The Legal Framework

Election petitions in Kenya are governed by Article 87 of the Constitution, the Elections Act (2011), and the Election Petition Rules. The framework includes strict timelines:

• Petitions must be filed within 28 days of results declaration
• High Court must hear and determine cases within 6 months
• Appeals to the Court of Appeal must be decided within 6 months
• IEBC must conduct a fresh election within 90 days of a nullification order

The 6-month hearing window creates its own complications. Judges handle election petitions alongside their regular caseload, and the evidentiary requirements are substantial. In 2022, the Judiciary assigned 68 judges specifically to election petition duty, but the volume of cases still strained the system.

Patterns in the Data

Analysis of the 2022 petitions reveals several patterns:

Geographic concentration: Rift Valley counties produced the highest number of petitions per capita, likely reflecting the region's competitive multi-party environment. Coast counties had the lowest petition rate, despite having some close races.

Success rates: Only about 5.8% of petitions (14 out of 242) resulted in nullification, consistent with historical averages. In 2013, the success rate was approximately 7%, and in 2017 about 6%. The consistently low success rate reflects the high evidentiary standard required and the courts' reluctance to overturn the will of the voter absent clear evidence of widespread irregularities.

Gender dimension: Women candidates filed a disproportionately high share of petitions relative to their share of candidacies. Approximately 18% of petitions were filed by women candidates, compared to women comprising roughly 12% of all candidates. This suggests that women candidates may face more contested outcomes.

Party affiliation: Petitions were filed across party lines, but independent candidates had the highest petition rate per candidate, filing challenges in 23% of races where independents came second.

Lessons for 2027

The post-2022 petition cycle offers clear lessons:

1. Candidate vetting must improve. Cases nullified on qualification grounds are entirely preventable with thorough IEBC verification.
2. Polling station integrity is paramount. Cases involving ungazetted stations or suspicious turnout figures point to the need for better oversight.
3. Data is the best defence. Candidates who maintained their own parallel tally data from all polling stations were better equipped to either defend their wins or challenge questionable results.