Elections Act

This Act may be cited as the Elections Act.

Defines "a political party or an independent candidate" for the purposes of an election under this Act.

A person whose name and biometric data are entered in a register for a particular polling station and who produces the identification document used at registration is eligible to vote in that polling station; persons prohibited by any written law remain disqualified.

Questions about whether a person is qualified to be registered as a voter must be determined in accordance with this Part.

A person who has applied to be registered but whose name is not in the register may submit a claim to the registration officer in the prescribed form, manner and time; the registration officer must determine such a claim in the prescribed manner, subject to the Constitution.

Adult citizens are required to exercise the right to vote; citizens may only exercise that right if registered in the Register of Voters.

The Commission must compile and maintain the Register of Voters for the registers listed in subsection (1).

Sets when and how voters are to be registered: eligible citizens aged 18+ must be registered on application; registration officers must enter applicants in the appropriate register and send registration information to the Commission; voters may not transfer their vote to an affected electoral area where an election petition leads to a by‑election between petition filing and that by‑election.

The Commission must open the Register of Voters for public inspection to allow rectification of particulars, must open it within 90 days of notice for a general election for at least 30 days (or a period it considers necessary), and must keep the Register at its headquarters with constituency copies at constituency offices.

The Commission must open the Register of Voters for biometric-data verification at polling stations, not later than sixty days before a general election, for thirty days; and after that period the Commission must revise the Register to reflect changes found during verification.

A voter must notify the Commission if they wish to transfer their registration to another electoral area at least ninety days before an election; the Commission must transfer the registration particulars to the preferred constituency register not later than sixty days before the election.

The Commission must maintain an updated Register of Voters.

Requires the national population register data holder to provide information to the Commission for an audit; requires an engaged firm to complete the audit and report within 30 days; requires the Commission to submit the audit report to Parliament within 14 days; requires the Commission to implement audit recommendations and report within 30 days.

If a person who would otherwise be disqualified from voter registration is entitled to appeal, they are not treated as disqualified until 30 days after the decision or for a longer period the Commission may allow to enable an appeal.

Political parties must nominate candidates by specific deadlines, follow their constitution and rules, may substitute candidates in limited circumstances, must resolve intra-party nomination disputes within 30 days, and the Commission can set nomination days at least 55 days before other elections.

Specifies when a Presidential election is initiated: for a general election at least sixty days before the election date; for an election under Article 138(5) at least twenty-one days before the election date; in any other case, when the office of President becomes vacant; and identifies nomination day and poll day(s) for the presidential election, with the poll at least twenty-one days after nomination.

A presidential candidate or political party must not change a nominated deputy presidential candidate after the nomination has been received by the Commission, but a political party may substitute its candidate in cases of death, resignation, incapacity or breach of the electoral code before nomination papers are presented to the Commission.

The respective Speaker must issue a notice when a parliamentary vacancy occurs; the Commission must transmit that notice to the relevant returning officer within twenty-one days of receipt.

When initiating a county governor election: for a general election it must be initiated at least sixty days before the general election date; in other cases it is initiated when the county governor's office becomes vacant; nomination day and polling day(s) are specified, with polling at least twenty-one days after nomination.

Change of deputy county governor nominee candidate.

Specifies timing and notice requirements for initiating county assembly elections, including deadlines for submission of party lists, nomination and polling schedule, and obligations for the speaker and the Commission when vacancies occur.

The Commission may publicise the notices under sections 14, 16, 17 and 19 in the electronic and print media of national circulation.

Each county assembly must elect a speaker (from qualified non-members) and a deputy speaker (from among its members); the First Schedule governs post-first-election procedures; listed circumstances create a vacancy in the office.

Sets the qualifications for nomination of candidates, including degree requirements for certain offices and transitional application to elections after 2017.

Lists the qualifications and disqualifications for nomination as President, including birth citizenship, eligibility for Parliament, party or independent nomination, nomination by at least 2,000 voters in a majority of counties, allegiance to a foreign state, holding public office, and certain office-holders (President, Deputy President, members of Parliament).

Sets qualifications and disqualifications for nomination as member of Parliament, including voter registration, prescribed requirements, numeric supporter thresholds for National Assembly and Senate, multiple disqualification categories (e.g. public officers, recent commissioners, non-citizens, county assembly members, unsound mind, undischarged bankrupt, certain sentences, misuse of office), and a rule that a person is not disqualified under subsection (2) unless all appeals or reviews are exhausted.

Sets out who qualifies and who is disqualified for nomination as a member of the county assembly, including voter registration, prescribed educational/moral requirements, nomination methods (party or independent supported by at least five hundred registered voters), and a list of disqualifying statuses (e.g. State or public officer, recent Commission member, insufficient citizenship tenure, unsound mind, undischarged bankrupt, serving at least six months imprisonment, or found to have misused office or contravened Chapter Six); also states a person is not disqualified under subsection (2) unless all appeals or reviews are exhausted.

A person who participates in any fundraising or harambee within eight months before a general election or during an election period shall be disqualified from contesting in that election, except for fundraising for a person contesting or for a political party.

Political parties must submit their nomination rules to the Commission six months before nominations; the Registrar must certify them; amendments become effective 90 days after submission; the Commission may issue certificates of compliance or require amendments within 14 days and may issue Regulations by Gazette notice.

The Commission must publicize membership lists as received from political parties.

A political party that nominates a candidate must submit its party membership list to the Registrar of Political Parties for certification at least fourteen days before submitting it to the Commission; the Registrar must verify and, if names are members, certify the list within seven days of receiving the application.

Section 29 has been deleted.

Permits political parties, candidates (including independent candidates), and registered referendum committees to appoint agents at polling stations; where a party does not nominate an agent, a party-nominated candidate may appoint an agent of their choice.

Rules for nomination of political party candidates: parties must select and submit candidate names within specified timeframes, notify and deposit authorised signatories with the Commission, and the Commission must conduct, supervise and publish party primary details; Parliament must appropriate funds.

Independent candidates must submit their election symbol to the Commission (normally at least twenty-one days before nomination day; if filling a Governor vacancy, at least seven days before nomination), and the Commission must approve or reject the symbol.

The Commission must publish in the Gazette the names of persons intending to contest as independent candidates at least fourteen days before the nomination day.

Political parties that nominate certain candidates must submit ordered party lists to the Commission; the Commission may certify compliance, require amendment or issue guidelines.

A political party must submit its party list to the Commission at least forty-five days before the date of the general election.

Political parties must submit party lists to the Registrar for certification at least fourteen days before submitting them to the Commission; the Registrar must verify membership and certify within seven days of the application.

Section 36 sets out how special seats are allocated: parties must submit gender-alternating lists and prioritise certain candidates on some lists; the Electoral Commission must, within thirty days of results being declared, designate party representatives from qualifying lists by proportional representation and draw specified numbers from lists to satisfy gender and group requirements.

If a party list representative dies, withdraws, changes parties, resigns or is expelled during the term, the seat is allocated to the next candidate of the same gender on that party's list; if there are no more candidates the Commission must require the party to nominate another candidate within twenty-one days; vacancies will not be filled in the three months immediately before a general election; if the party fails to nominate the Commission will not allocate the seat for the remainder of the term.

After a notice of an election is published in the Gazette under sections 14, 16, 17 and 19, every returning officer must proceed to hold the election according to the notice and the regulations relating to elections.

A polling station must not have more than seven hundred voters.

The Commission must determine, declare and publish election results immediately after close of polling; it must appoint county returning officers, verify transmitted results, establish live-streaming for public information (streams not determinative), and the Chairperson may and has the role to declare the President under Article 138(10).

The Commission must establish mechanisms for continuous voter education and prepare a voter education curriculum while performing its duties under Article 88(4)(g) of the Constitution.

Political parties participating in an election are entitled to access state-owned media during the campaign period; the Commission must monitor equitable air-time after consultations, media must remain impartial and subscribe to the journalism Code, and the Commission may issue directives or prohibit transmission by non-compliant media.

Section 42 — Accreditation of observers, agents, reporters, and media representatives.

Public officers intending to run for election must resign: general elections — at least six months before election day; by-elections — within seven days of the declaration of vacancy.

The Commission must develop policy and implement technology for an integrated electronic electoral system, ensure the technology is simple, accurate, verifiable, secure, accountable and transparent, procure required technology at least 120 days before a general election and test and deploy it at least 60 days before a general election.

The Commission must put in place a complementary mechanism for identifying voters that is simple, accurate, verifiable, secure, accountable and transparent to ensure compliance with Article 38 of the Constitution.

The electorate in a county or constituency may recall their Member of Parliament before the end of the term on specified grounds, but only after a High Court finding and within specified time windows.

Rules for petitioning to recall a Member of Parliament, including required support lists, filing and verification deadlines, notice issuance and timing of recall election.

Section 47 sets rules for recall elections: the Commission must frame the recall question (requiring a yes/no answer), assign symbols for answers, and conduct a by-election if the recall removes a Member; voting is by secret ballot; a recalled Member may stand in the resulting by-election; the result is decided by a simple majority.

A recall election is valid if at least fifty percent of the total registered voters in the affected county or constituency concur.

When a referendum is necessary the President must refer the issue to the Commission by notice; the Commission must frame the question(s), consult the Speaker and lay the question before the House for approval; the National Assembly may approve question(s); the Commission must publish approved question(s) in the Gazette and national media and must conduct the referendum within ninety days of publication; the Commission may assign symbols for answers but any such symbol must not resemble that of a political party or an independent candidate.

The Commission must, within fourteen days after publication of the question referred to in section 49, publish a notice of the holding of the referendum and its details in the Gazette and in electronic and print media of national circulation.

Persons intending to campaign for or against a referendum question must form national and constituency referendum committees; committees must register with the Commission and provide information showing adequate representation; national committees control constituency committees; members must abide by the Electoral Code of Conduct.

Each referendum committee must pay its own costs during the referendum campaign period; those costs include payment of the committees' agents.

The procedure for conducting an election applies, with necessary modifications, to the conduct of a referendum.

A referendum question (other than those in Articles 255–257 of the Constitution) is decided by a simple majority of citizens voting in the referendum.

The Commission may take administrative measures to ensure the referendum is effectively conducted.

Persons authorized to participate in ballot handling must take a prescribed oath of secrecy, must maintain ballot secrecy, must not communicate voter identity or voting information before the close of the poll except as authorized by law, and a presiding officer may, on request, disclose total numbers who have voted before the poll closes.

Section 55B allows the Commission to postpone elections on specified grounds and to direct that a return be made in certain cases.

A voter who voted at a referendum has the right not to be required, in proceedings to question the referendum, to state how they voted.

The High Court may order a scrutiny of votes during the hearing of a referendum petition, on its own motion or on an application by a petitioner.

Section 102 sets out powers of the High Court in referendum petitions (dismiss, declare result incorrect, declare void, uphold) and requires the Registrar to send decisions and certificates to the Commission, which must declare and publish results; the Commission's declaration is final and not challengeable; if the High Court declares a referendum void the Commission must conduct a fresh referendum.

The High Court may order how the costs of presenting and hearing a referendum petition are borne, may order costs caused by vexatious conduct to be paid by the party responsible, may order a person guilty of corrupt practice to pay costs after an opportunity to be heard, and may order return of security money when no longer needed upon motion with notice and proof.

Facilitation of persons with special needs, including persons with disabilities, through appropriate infrastructure such as special voting booths.

The Commission must settle electoral disputes (including those about or arising from nominations) but not election petitions or disputes after declaration of results.

Rules for which courts determine county election petitions, timing for hearings, possible outcomes, and appeal deadlines.

Sets time limits for presenting different types of election petitions: (a) petitions questioning validity of an election must be filed within 28 days of declaration and served within 15 days; (b) petitions seeking that a seat has not become vacant must be presented within 28 days of publication of the vacancy; (c) petitions seeking that a seat has become vacant may be presented at any time; petitions about corrupt or illegal practices have specific 28‑day periods after publication in the Gazette; petitions may be amended with leave of the election court.

For non-presidential elections, a petition must be filed within twenty-eight days after the Commission declares the election results; a petition may be served personally on a respondent or by advertisement in a newspaper with national circulation.

A petitioner must deposit security for potential costs within ten days of presenting a petition; specified fixed amounts apply for petitions against different office-holders; if security is not deposited an objection may lead to dismissal and the respondent may apply for costs; the election court must release security only after hearing all parties.

If the election court considers that the petition does not disclose sufficient ground for the relief claimed, it may summarily reject the petition.

Section 80 gives the election court powers to summon, swear and examine witnesses, compel attendance, decide matters without undue regard to technicalities; refusal to obey an order to attend is contempt of court; interlocutory matters in petitions on presidential, parliamentary or county elections are to be heard by the election court; the Commission must notify the relevant Speaker in writing of the decision under subsection (4).

A voter who voted cannot be required, in election petition proceedings, to say whom they voted for.

An election court may order that a scrutiny of votes be carried out during the hearing of an election petition, on its own motion or on application by any party.

An election will not be nullified if (a) it was conducted in accordance with the principles laid down in the Constitution and the written law, and (b) any non-compliance did not substantially affect the result; additionally, a prescribed form is not void for a deviation from its requirements so long as the deviation is not calculated to mislead.

An election court must award the costs of and incidental to a petition; such costs shall follow the cause.

Election petitions under this Act must be heard and determined within the period specified in the Constitution.

Appeals under Section 85A(1)(a) must be filed within thirty days of the High Court decision; Section 85A(1)(b) appeals must be heard and determined within six months of filing; an appeal under subsection (1) stays the election court certificate until the appeal is heard and determined.

An election court must determine issues raised in an election petition at the conclusion of the hearing and certify its determination to the Commission and notify the relevant Speaker; if a county governor's election is nullified, the Commission must publish a Gazette notice within seven days and the notice must state invalidation and announce the date for a new election; where such a vacancy arises the county assembly speaker shall act as governor and an election shall be held under Article 182(5) of the Constitution.

The Commission shall not conduct fresh nominations for a fresh election pursuant to Article 140(3) of the Constitution.

An election court may determine whether a criminal electoral malpractice may have occurred at the end of a petition hearing, and if it so determines the court must direct that the order be transmitted to the Director of Public Prosecutions.

Unless the Act provides otherwise, the procedure for an election petition applies to a referendum petition.

A petition to the High Court may challenge the conduct, result or validity of a referendum; the petitioner must set out facts, identify matters relied on, include a request for relief, and file the petition in the High Court within twenty-one days of publication of the referendum results in the Gazette.

A referendum petition must be heard and determined by a bench of three judges appointed by the Chief Justice.

When a referendum result is declared, the declared result has specified legal effects: parts (1)(a) take effect from the declaration date; (1)(b) is final and cannot be challenged in court; and (1)(c) is conclusive evidence of the referendum voting and result. Subsection (2) addresses statements about simple majority support and limits on petitions leading to contrary declarations.

Who may present a referendum petition: (a) persons who lawfully voted or had the right to vote in the constituency for petitions about constituency results; (b) persons who voted or had the right to vote at the referendum for petitions about declared referendum results; (c) the Commission in other cases. Petitioners must serve all respondents within seven days of filing and must publish a notice in the Gazette and a national newspaper within fourteen days.

The High Court may add or name a person as a respondent to a referendum petition in specified circumstances and may name a referendum officer as a respondent when a legal question arises and the Attorney-General applies.

Petitioner(s) must sign a referendum petition; the Registrar of the High Court must, in writing, inform the Commission when a referendum petition is presented.

The Registrar of the High Court must make and keep a list of all referendum petitions filed under this Part; the list must be open for inspection by any person who applies to inspect it.

A petitioner must deposit one million shillings as security for costs within ten days of presenting a petition; failure to deposit will result in the petition being struck out for a referendum petition and the High Court may order costs.

If one petitioner dies before the court's final order, the remaining petitioner(s) are entitled to continue the petition.

The High Court may use its civil-jurisdiction powers when trying a referendum petition; a petitioner may withdraw a referendum petition by notifying other parties and the High Court, subject to court orders on costs. Section 98(1)(a) says a petition must be heard and determined within six months from presentation and Section 98(1)(b) requires hearings in open court.

Section 99 gives the Court power to summon and examine witnesses in a referendum petition, requires witnesses to answer questions (even if incriminating), grants indemnity and immunity to witnesses who fully comply, allows the Court to order service of the petition and to stay proceedings on production of a certificate, and provides for payment of reasonable witness expenses.

Every public officer and public or private entity must co-operate with the Commission during an election and must not hinder the Commission.

This section has been deleted.

Section 107 gives Commission members or designated officers the permission to order arrests for offences under the Act; it gives the Commission the power to prosecute offences and to impose sanctions pending hearing; and gives Commission members or designated persons the power to impound state resources used in election campaigns.

Candidates and political parties participating in an election must be given reasonable airtime on all broadcasting media during the campaign period.

Section 109 grants rulemaking power to make regulations and requires the Commission to publish regulations approved by the National Assembly in the Gazette at least sixty days before a general election; it also requires that a draft of proposed regulations be approved by the National Assembly at least four months before a general election (with a proviso for the first general election).

Every political party and every person participating in an election or referendum must subscribe to and observe the Electoral Code of Conduct; a political party eligible to nominate candidates cannot contest unless the party and candidate have subscribed.

Transitional provisions deem certain items and actions under the former National Assembly and Presidential Elections Act to be done under this Act and provide rules about commencement and the application of earlier elections under the former Constitution.