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Elections Act

The Elections Act , 2011
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THE ELECTIONS ACT , 2011

ARRANGEMENT OF SECTIONS

Section
PART I — PRELIMINARY

1— Short title .
2— Interpretation .

PART II — REGISTRATION OF VOTERS AND
DETERMINATION OF QUESTIONS CONCERNING
REGISTRATION

3— Right to vote .
4— Principal Register of Voters .
5— Regis tration of voters .
6— Inspection of register of voters .
7— Transfer of registration
8— Updating of the Principal Register of Voters .
9— Postponement of disqualification to enable appeal .
10 — Eligibility to vote .

Determination of questions concerning registrati on

11 — Determination of questions as to registration.
12 — Claims.

PART III — ELECTIONS

13 — Nomination of candidates by a political party .

Presidential elections

14 — Initiation of Presidential election .
15 — Change of deputy president nominee candidate .

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Parli amentary elections

16 — Initiation of election of member of Parliament .

County governor elections

17 — Initiation of county governor election .
18 — Change of deputy county governor nominee candidate .

County assembly elections

19 — Initiation of country assemb ly elections .
20 — Notification in electronic media .
21 — Election of county assembly speaker .

Nominations and elections generally

22 — Qualifications for nomination of candidates .
23 — Qualifications and disqualifications for nomination as President. .
24 — Quali fications and disqualifications for nomination as member of
Parliament.
25 — Qualifications for nomination as member of county assembly .
26 — Additional disqualification .
27 — Submission of party nomination rules .
28 — Submission of party membership list s.
29 — Power to nominate .
30 — Appointment of agents .
31 — Nomination of political party candidates .
32 — Approval of symbol for independent candidate .
33 — Nomination of independent candidates .

Nomination of party list members

34 — Nomination of party lists member s.
35 — Submission of party lists .
36 — Allocation of special seats

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37 — Re -allocation of special seats.
38 — Holding of elections .
39 — Determination and declaration of results .
40 — Voter education .
41 — Access to and obligation of media .
42 — Accreditation of observe rs, agents, reporters, etc .
43 — Participation in elections by public officers .
44 — Use of technology .

PART IV — RECALL OF MEMBER OF PARLIAMENT

45 — Right of recall .
46— Petition for recall .
47 — Recall elections .
48 — Validity of recall election .

PART V — REFERENDU M

49 — Initiation of a referendum .
50 — Notice of holding referendum
51 — Referendum committees .
52 — Costs of referendum committee .
53 — Procedure for conduct of referendum.
54 — Voting threshold .
55 — General power of the Commission .

PART VI — ELECTION OFFENCES

56 — Offences relating to register of voters and voter‘s cards .
57 — Offences relating to multiple registrations as a voter .
58 — Offences relating to voting .
59 — Offences by members and staff of the Commission .
60 — Maintenance of secrecy at elections .
61 — Personation .
62 — Treating .
63 — Undue influence .

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64 — Bribery .
65 — Use of force or violence during election period .
66 — Use of national security organs .
67 — Offences relating to elections .
68 — Use of public resources .

Illegal Practices

69 — Certain expenditure illegal practice .
70 — Employers to allow employees reasonable period for voting .
71 — Aiding and abetting offences under this Part .
72 — Election offence by candidate or political party .
73 — Postponement of elections by Commission .

PART VII — ELECTION DISPUTES RESOLUTION

Disput e resolution by the Commission

74 — Settlement of certain disputes.

Election petitions

75 — County election petitions .
76 — Presenta tion of petitions.
77 — Service of petition .
78 — Security for costs .
79 — Procedure of election court on receipt of petition .
80 — Pow ers of election court .
81 — Prohibition of disclosure of vote .
82 — Scrutiny of votes .
83 — Non compliance with the law .
84 — Costs .
85 — Determination of election petition .
86 — Certificate of court as to validity of election .
87 — Report of court on election offences .

Referendum Petitions

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88 — Election petition procedures to apply to referendum petition .
89 — Referendum petition.
90 — Composition of Court .
91 — Operation of declared result of issue submitted to referendum .
92 — Persons who may present referendum petition .
93 — Respondents to referendum petition .
94 — Filing of referendum petition .
95 — Duty of Registrar to make list of referendum petitions .
96 — Practice procedure and security for costs .
97 — Death of or delay by petitioner .
98 — Hearing of referendum petition.
99 — Powers o f a court to summon w itnesses in a referendum petition .
100 — Prohibition of disclosure of vote .
101 — Examination of votes .
102 — Powers of Court .
103 — Petition expenses .
104 — Certification of referendum .

PART VIII — GENERAL PROVISIONS

105 — Duty to co -operate .
106 — General penalty .
107 — Powers of arrest and prosecution .
108 — Airtime by state radio and television for election campaign.
109 — Regulations .
110 — Electoral code of conduct .
111 — Re peals .
112 — Transitional provisions .

FIRST SCHEDULE — ELECTION OF SPEAKER OF COUNTY ASSEMBLY
SECOND SCHEDULE — ELECTORAL CODE OF CONDUCT
THIRD SCHEDULE — OATH OF SECRECY

THE ELECTIONS ACT , 2011

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AN ACT of Parliament to provide for the conduct of
elections to the office of the President, the
National Assembly, the Senate, county
governor and county assembly ; to provide for
the conduct of referenda; to provide for
election dispute resolution and for connected
purposes

ENACTED by the Parliament of Kenya as follows —

PART I — PRELIMINARY

Short title. 1. This Act may be cited as the Elections Act, 2011
and shall come into operation on such date as the Minister
may, by notice in the Gazette, appoint .

Interpretation.

2. In this Act, unless the context otherwise requires —

―adult‖ has th e meaning assigned to it in Article 260
of the Constitution;

―agent‖ means a person duly appointed by —

(a) a political party or an independent candidate
for the purposes of an election under this Act;
or

(b) a referendum committee for the purposes of a
ref erendum under this Act,

and includes a counting agent and a tallying agent;

―ballot box‖ means a transparent container with a slot
on the top sufficient to accept a ballot paper in an election or
in a referendum but which prevents access to t he votes cast
until the closing of the voting period;

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―ballot paper‖ means a paper used to record the choice
made by a vote and shall include an electronic version of a
ballot paper or its equivalent for purposes of electronic
voting ;

―campaign period‖ means the period specified as such
in the notice issued by the Commission in relation to an
election;

―candidate‖ means a person contesting for an elective
post;

―Commission‖ means the Independent Electoral and
Boundaries Commission established under Article 88 of the
Constitution;

―constituency‖ means one of the constituencies into
which Kenya is divided under Article 89 of the
Constitution;

“constituency register” means the register of voters
compiled in respect of each constituency by the
Commis sion;

―county‖ means the counties into which Kenya is
divided under Article 6 (1) of the Constitution and specified
in the First Schedule of the Constitution;

―county assembly‖ means a county assembly
constituted in acco rdance with Article 177 of the
Constitution;

―county election" means the election of a county
governor or a member of a county assembly;

―disability‖ has the meaning assigned to it in Article
260 of the Constitution;

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―election‖ means a presidential, parliamentary or
county electio n and includes a by -election;

―electoral area‖ means a constituency, a county or a
ward ;

―election court‖ means the Supreme Court in exercise
of the jurisdiction conferred upon it by Article 163 (3) (a) or
the High Court in the exercise of the jurisdict ion conferred
upon it by Article 165 (3) (a) of the Constitution;

―election material‖ means ballot boxes, ballot papers,
counterfoils, envelopes, packets statements and other
documents used in connection with voting in an election and
includes informatio n technology equipment for voting, the
voting compartments, instruments, seals and other materials
and things required for the purpose of conducting an
election;

“election offence” means an offence under this Act;

―elections officer‖ means a person appo inted by the
Commission for the purposes of conducting an election
under this Act;

―election period‖ means the period between the
publication of a notice by the Commission for a presidential,
parliamentary or county election under sections 1 4, 16 , 17
and 19 and the Gazette ment of the election results;

―election results‖ means the declared outcome of the
casting of votes by voters at an election;

―harambee‖ means the public collection of monies or
other property in aid or support of a c ause or a projec t;

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―identification document‖ means a Kenyan national
identification card or a Kenyan passport;

―illegal practice‖ means an offence specified in Part
VI;

―independent candidate‖ means a candidate for
presidential, parliamentary or county elections who is not a
member of a political party;

―nomination‖ means the submission to the
Commission of the name of a candidate in accordance with
the Constitution and this Act;

―nomination day‖ in respect of an election, means the
day gazetted by the Commission as the day for the
nomination of candidates for that election

―observer‖ means a person or an organisation
accredited by the Commission to observe an election or a
referendum;

―party list‖ means a party list prepared by a political
party and submitte d to the Commission pursuant to and in
accordance with Article 90 of the Constitution and sections
29, 3 4, 3 5, 3 6 and 3 7;

―parliamentary election‖ means the election of one or
more members of Parliament;

―petition‖ means an application to the election court
under the Constitution or under this Act;

―political party‖ has the meaning assigned to it in
Article 260 of the Constitution;

―polling station‖ means any room, place, vehicle or

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vessel set apart and equipped for the casting of votes by
voters at an election;

―presidential election‖ means an election of a
President in accordance with Articles 136, 139 (1) (b) and
146 (2) (b) of the Constitution;

―Principal Register of Voters‖ means a current
register of persons entitled to vote at an election prepared in
accordance with section 3 and includes a register that is
compiled electronically;

―public officer‖ has the meaning assigned to it in
Article 260 of the Constitution;

―public resources‖ include –

(a) any vehicle , or equipmen t owned by or in the
possession; or

(b) premises owned or occupied by,

any government, state organ, statutory corporation or a
company in which the Government owns a controlling
interest;

―referendum‖ means a poll held under Part V ;

―referendum committee‖ means a national or a
parliamentary constituency committee comprising of persons
intending to support or oppose a referendum question;

―referendum officer‖ means a person appointed by the
Commission for the purpose of conducting a referendum ;

―referendum question‖ mea ns a question upon which
voters shall vote in a referendum as specified in section 49;

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―registration officer‖ means a person appointed by the
Commission for the purpose of preparing a register of
voters;

―returning officer‖ means a person appointed by the
Commission for the purpose of conducting an election or a
referendum under this Act;

―supporter‖ means a voter who supports the
nomination of a candidate;

―vessel‖ includes any ship, boat or any other
description of vessel used in navigation;

―vo ter‖ means a person whose name is included in a
current register of voters;

―voter‘s card‖ means a card issued to a voter as
evidence of the voter‘s registration in a register of voters;

―voting period‖ means the period specified as such in
the notice issued by the Commission in relation to an
election ;

―ward‘ means an electoral area within a co unty
delimited in accordance with Article 89 of the Constitution .

PART II — REGISTRATION OF VOTERS AND
DETERMINATION OF QUESTIONS
CONCERNING REGISTRATION

Right to vote . 3. (1) An adult citizen shall exercise the right to vote
specified in Article 38 (3) of the Constitution in accordance
with this Act.

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(2) A citizen shall exercise the right to vote if the citizen
is registered in the Principal Register of V oters.

Principal Register
of Voters. 4. (1) There shall be a register to be known as the
Principal Register of Voters which shall comprise of —

(a) a poll register in respect of every polling
station;
(b) a ward register in respect of every ward;
(c) a constituency r egister in respect of every
constituency;
(d) a county register in respect of every county ;
and
(e) a register of voter s residing outside Kenya .
(2) The Commission shall compile and maintain the
Principal Register of Voters referred to in subsection (1).
(3) The Principal Register of Voters shall contain such
information as shall be prescribed by the Commission.

Registration of
voters . 5. (1) Registration of voters and revision of the register
of voters under this Act shall be carried out at all times
except —

(a) in the case of a general election or an election
under Article 138(5) of the Constitution ,
between the date of commencement of the
ninety day period immediately before the
election a nd the date of such election;

(b) in the case of a by -election, betwe en the date of
the declaration of the vacancy of the seat

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concerned and the date of such by -election; or

(c) in any other case, between the date of the
declaration of the vacancy of the seat
concerned and the date of such election.

(2) Notwiths tanding subsection (1), where an election
petition is filed in respect of an electoral area, between the
date of the filing of the petition and the date of the by –
election, where a court determines that a by -election is to be
held, a voter shall not be all owed to transfer his or her vote to
the affected electoral area.

(3) Any citizen of Kenya who has attained the age of
eighteen years as evidenced by either a national identity card
or a Kenyan passport and whose name is not in the register of
voters shall be registered as a voter upon application , in the
prescribed manner , to the Commission.

(4) All applicants for registration under this section
shall be registered in the appropriate register by the
registration officer or any other officer authorise d by the
Commission.

(5) The registration officer or any other authorise d
officer referred to in subsection (3) shall, at such times as the
Commission may direct, transmit the information relating to
the registration of the voter to the Commission for inclusio n
in the Principal Register of voters .

Inspection of
register of voters. 6. (1) The Commission shall cause the Principal R egister
of Voters to be opened for inspection by members of the
public at all times for the purpose of rectifying the particulars
ther ein , except for such period of time as the Commission
may consider appropriate .

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(2) The Commission shall, within ninety days from the
date of the notice for a general election, open the Principal
Register of Voters for inspect ion for a period of at lea st thirty
days or such period as the Commission may consider
necessary.

(3) The Commission shall, upon expiry of the period
for inspection specified under subsection (1), compile the
amendments to the register of voters and as soon as
practicable therea fter , being not less than thirty days before an
election —

(a) publish a notice in the Gazette to the effect that
such compilation has been completed; and

(b) cause to be transmitted to every registration
officer, a copy of the part of the Principal
Register of V oters relating to the constituency
for which the registration officer is responsible
to be kept in safe custody.

(4) The Principal R egister of Voters shall be kept at the
headquarters of the Commission and copies of the part of the
Principal Register of Voters relating to the constituency for
which the registration officer is responsible shall be kept at all
the constituency offices of the Commission.

Transfer of
registration. 7. (1) Where a voter wishes to transfer the voter‘s
registration to a n electora l area other than the one the voter is
registered in, the voter shall notify the Commission , in the
prescribed manner, of the intention to transfer the registration
to the preferred electoral area not less than ninety days
preceding an election.

(2) Upon receipt of the notification referred to in
subsection (1), the Commission shall transfer the voter‘s
registration particulars to the register of the preferred

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con stituency not later than sixty days preceding the election.

Updating of the
Principal Regist er
of Voters.

8. (1) The Commission shall maintain an updated
Principal Register of Voters.

(2) For purposes of maintaining an updated register of
voters, the Commission shall —

(a) regularly revise the Principal Register of Voters;

(b) update the Principal Register of Voters by deleting
the names of deceased voters and rectifying the
particulars therein;

(c) conduct a fresh voter registration , if necessary, at
intervals of not less than eight years, and not more
than twelve years, immediately after the
Commis sion reviews the names and boundaries of
the constituencies in accordance with Article 89 (2)
of the Constitution;

(d) review the number, names and boundaries of wards
whenever a review of the names and boundaries of
counties necessitates a review ; and

(d) revise the Principal Register of Voters whenever
county boundaries are altered in accordance with
Article 94 (3) of the C onstitution .

Postponement of
disqualification
to enable
appeal.
9. Where a person has been adjudged or declared to be of
unsound m ind, adjudged bankrupt or convicted of an election
offence and is thereby disqualified from being registered as a
voter, then, if that person is entitled to appeal against the
decision , that person shall not be disqualified f rom being so
registered until t he expiration of thirty days after the date of
the decision or such further period as the Commission may, at
the request of the person, direct in order to enable the person

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to appeal against the decision.

Eligibility to vote.
10. (1) A person whose name i s entered in a register of
voters in a particular polling station, and who produces a
valid voter‘s card issued to the person in respect of that
registration and an identification document shall be eligible to
vote in that polling station.

(2) The identif ication document produced in subsection
(1) shall be the identification document used at the time of
registration as a voter.

(3) Nothing in this section shall entitle a person who is
prohibited from voting by any written law to vote or relieve
that perso n from any penalties to which the person may be
liable for voting.

Determination of questions concerning registration

Determination of
questions as to
registration.
11. Any question whether a person is qualified to be
registered as a voter shall be de termined in accordance with
this Part.

Claims. 12. (1) A person who has duly applied to be registered and
whose name is not included in the register of voters may
submit a claim for the name to be included in the register to
the registration officer in the prescribed form and manner and
within the prescribed time .

(2) Subject to the Constitution, a claim under subsection
(1) shall be determined by the registration officer in the
prescribed manner, and an appeal shall lie in the prescribed
manner, to the Pr incipal Magistrates Court on matters of fact
and law and to the High Court on matters of law .

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PART III — ELECTIONS

Nomination of
candidates by a
political party.
13. (1) A p olitical party shall nominate its candidates
for an election under this Act at least forty -five days before a
general election under this Act in accordance with its
constitution and nomination rules.

(2) A political party shall not change the candidate
nominated after the nomination of that person has been
received by the Com mission:

Provided that in the event of the death, resignation or
incapacity of the nominated candidate or of the violation of
the electoral code of conduct by the nominated candidate , the
political party may after notifying the candidate that the party
seeks to substitute , where applicable its candidate before the
date of presentation of nomination papers to the Commission.

(3) Notwithstanding subsection (1), in the case of any
other election, the Commission shall by notice in the
prescribed form, spe cify the day or days upon which political
parties shall nominate candidates to contest in a presidential,
parliamentary or county election in accordance with its
constitution or rules, which shall not be more than twenty -one
days after the date of publicat ion of such notice .

Presidential elections

Initiation of
presidential
election.
14. (1) Whenever a presidential election is to be held, the
Commission shall publish a notice of the holding of the
election in the Gazette and in electronic and print med ia of
national circulation —

(a) in the case of a general election, at least sixty
days before the date of the election; or

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(b) in the case of an election under Article 138(5)
of the Constitution, at least twenty -one days
before the date of the election;

(c) in any other case, upon the office of the
President becoming vacant.

(2) The notice referred to in subsection (1) shall be in
the prescribed form and shall specify —

(a) the nomination day for the presidential
election; and

(b) the day or days on which the p oll shall be taken
for the presidential election, which shall not be
less than twenty -one days after the day
specified for nomination .

Change of deputy
president nominee
candidate .
15. (1) A presidential candidate or a political party shall
not at any tim e change the person nominated as a deputy
presidential candidate after the nomination of that person has
been received by the Commission :

Provided that in the event of death, resignation or
incapacity of the nominated candidate or of the violation of
the electoral code of conduct by the nominated candidate, the
political party may substitute its candidate, the political party
may substitute its candidate, the political party may substitute
its candidate before the date of presentation of nomination
papers to the Commission.

(2) Subsection (1) shall apply in the case of a fresh
election under Article 138 (5) of the Constitution.

Parliamentary elections

Initiation of
election of member 16. (1) Whenever a parliamentary election is to be held,

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of Parliament . the Commission shall publish a notice of the holding of the
election in the Gazette and in the electronic and print media of
national circulation —

(a) in the case of a general election, at least sixty
days before the date of the general election; or

(b) in any other case, upon the office of a member
of Parliament becoming vacant and on receipt of
a notice issued by the respective Speaker under
subsection (2) .

(2) The notice refe rred to under subsection (1) shall be
in the prescribed form and shall specify — —

(a) the day upon which political parties shall
submit a party list in accordance with Article
90 of the Constitution ;
(b) the day for the nomination of candidates for the
parliamentary election; and
(c) the day or days on which the poll shall be taken
for the e lection, which shall not be less than
twenty -one days after the day specified for
nomination under paragraph (b).
(3) Whenever a vacancy occurs in the National
Assembly or the Senate, the respective Speaker shall issue a
notice in accordance with Article 101 of the Constitution.

(4) The Commission shall within twenty one days of
receipt of the notice issued under subsection (2), transmit the
notice to the relevant returning officer.

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County governor elections

Initiation of county
governor electi on.
17. (1) Whenever an election for a county governor is
to be held, the Commission shall publish a notice of the
holding of the election in the Gazette and in the electronic and
print media of national circulation —

(a) in the case of a general election, at lea st sixty
days before the date of the general election; or

(b) in any other case, upon the office of the county
governor becoming vacant.

(2) The notice referred to in subsection (1) shall be in
the prescribed form and shall specify —

(a) the day for the nominati on of candidate for the
county governor election; and

(b) the day or days on which the poll shall be taken
for the county governor election, which shall
not be less than twenty -one days after the day
specified for nomination.

Change of deputy
county g overnor
nominee candidate.
18. A county governor candidate or a political party
shall not at any time change the person nominated as a deputy
county governor candidate after the nomination of that person
has been received by the Commission.

Provided t hat in the event of death, resignation or
incapacity of the nominated candidate or of the violation of
the electoral code of conduct by the nominated candidate, the
political party may substitute its candidate before the date of
presentation of nomi nation papers to the Commission .

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County assembly elections

Initiation of county
assembly elections. 19. (1) Whenever a county assembly election is to be
held, the Commission shall publish a notice of the holding of
the election in the Gazette and in the e lectronic and print
media of national circulation —

(a) in the case of a general election, at least sixty
days before the date of general election; or

(b) in any other case, upon the office of a member
of a county assembly becoming vacant.

(2) The notice referre d to under subsection (1) shall be
in the prescribed form and shall specify —

(a) the day upon which political part ies shall
submit a party list in accordance with Article
90 of the Constitution;
(b) the day for the nomination of candidates for
county elections; and

(c) the day or days on which the poll shall be
taken for the county election, which shall not
be less than twenty -one days after the day
specified for the nomination under paragraph
(b) .

(3) Whenever a vacancy occurs in a county
assembly, the speaker of the county assembly shall within
twenty one days after the occurrence of the vacancy issue a
notice to the Commission in the prescribed form.

(4) The Commission shall within twenty one days of
receipt of the notice issued under subsection (3), transmit th e
notice to the relevant returning officer.

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Notification in
electronic media. 20. The Commission may in addition publicise the
notices under sections 14, 16, 17 and 19 in the electronic and
print media of national circulation .

Election of county
assem bly speaker. 21. (1)The speaker of a county assembly shall be elected
by each county assembly in accordance with the Standing
Orders of the county assembly, from among persons who are
qualified to be elected as members of a county assembly but
are not such mem bers.

(2) For the purpose of the election of the speaker of the
county assembly after the first election under the Constitution,
the procedure set out in the First Schedule shall apply.

(3) The office of speaker of a county assembly shall
become vacant —

(a) when a new county assembly first meets after an
election;

(b) if the office holder vacates office;

(c) if the county assembly resolves to remove the
office holder by a resolution supported by the
votes of at least two -thirds of its members;

(d) if the of fice holder resigns from office in a letter
addressed to the county assembly ; or

(e) if the officer holder dies.

Nominations and elections generally

Qualifications for
nomination of
candidates.

22. (1) A person may be nominated as a candidate for
an election under this Act only if that person —

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(a) is qualified to be elected to that office under the
Constitution and this Act; and

(b) holds a post secondary school qualification
recognised in Kenya.

(2) Notwithstanding subsection (1) (b), a pe rson may be
nominated as a candidate for election as President, Deputy
President, county Governor or deputy county Governor only
if the person is a holder of a degree from a university
recognised in Kenya.

Qualifications and
disqualifications
for nomin ation as
President.

23. (1) A person qualifies for nomination as a presidential
candidate if the person —

(a) is a citizen by birth;

(b) is qualified to stand for election as a member of
Parliament;

(c) is nominated by a political party, or is an
independ ent candidate; and

(d) is nominated by not fewer than two thousand
voters from each of a majority of the counties.

(2) A person is not qualified for nomination as a
presidential candidate if the person —

(a) owes allegiance to a foreign state; or

(b) is a pub lic officer, or is acting in any State or
other public office.

(3) Subsection (2) (b) shall not apply to —

(a) the President;

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(b) the Deputy President; or

(c) a member of Parliament.

Qualifications and
disqualifications
for nomination as
member of
Parliamen t.

24. (1) Unless disqualified under subsection (2), a
person qualifies for nomination as a member of Parliament if
the person —

(a) is registered as a voter;

(b) satisfies any educational, moral and ethical
requirements prescribed by the Constitution and
this A ct; and

(c) is nominated by a political party, or is an
independent candidate who is supported ––

(i) in the case of election to the National
Assembly, by at least one thousand
registered voters in the constituency; or

(ii) in the case of election to the Senate, by at
least two thousand registered voters in the
county.

(2) A person is disqualified from being elected a member
of Parliament if the person —

(a) is a State officer or other public officer, other
than a member of Parliament;

(b) has, a t any time within the five years
immediately preceding the date of election, held
office as a member of the Commission;

(c) has not been a citizen of Kenya for at least the

The Elections Act , 2011
25

ten years immediately preceding the date of
election;

(d) is a member of a county assembl y;

(e) is of unsound mind;

(f) is an undischarged bankrupt;

(g) is subject to a sentence of imprisonment of at
least six months, as at the date of registration as
a candidate, or at the date of election; or

(h) is found , in accordance with any law , to have
misused or abused a State office or public office
or in any way to have contravened Chapter Six
of the Constitution.

(3) A person is not disqualified under subsection (2)
unless all possibility of appeal or review of the relevant
sentence or decision has been exhaus ted.

Qualifications for
nomination as
member of county
assembly.

25. (1) Unless disqualified under subsection (2), a person
qualifies for nomination as a member of a county assembly if
the person —

(a) is registered as a voter;

(b) satisfies any educational, moral and ethical
requirements prescribed the Constitution and this
Act; and

(c) is either —

(i) nominated by a political party; or

(ii) an independent candidate supported by at

The Elections Act , 2011
26

least five hundred registered voters in the
ward concerned.

(2) A person is disqualifie d from being elected a member
of a county assembly if the person —

(a) is a State officer or other public officer, other than
a member of the county assembly;

(b) has, at any time within the five years immediately
before the date of election, held office as a
mem ber of the Commission;

(c) has not been a citizen of Kenya for at least the ten
years immediately preceding the date of election;

(d) is of unsound mind;

(e) is an undischarged bankrupt;

(f) is serving a sentence of imprisonment of at least
six months; or

(g) has been fo und , in accordance with any law , to
have misused or abused a State office or public
office or to have contravened Chapter Six of the
Constitution.

(3) A person is not disqualified under subsection (2)
unless all possibility of appeal or review of the rele vant
sentence or decision has been exhausted.

Additional
disqualification. 26.(1) A person who directly or indirectly participates in
any manner in any or public fundraising or harambee within
eight months preceding a general election or during an
ele ction period, in any other case, shall be disqualified from
contesting in the election held during that election year or

The Elections Act , 2011
27

election period.

(2) Subsection (1) shall not apply to a fundraising for a
person who is contesting an election under this Act or to a
fundraising for a political party .

Submission of
party nomination
rules.
27. A political party shall submit its nomination rules to
the Commission at least six months before the nomination of
its candidates.

Submission of
party membership
lists.
28. A political party that nominates a person for any
election under this Act shall submit to the Commission a
party membership list of the party at least three months before
the nomination of the candidate.

Power to
nominate . 29. (1) The persons who nominate a presidential,
parliamentary, county governor and county assembly
candidate shall be registered members of the candidate‘s
political party.

(2) The persons who nominate an independent
presidential, parliamentary, county governor candidate and
county ass embly shall not be registered members of any
political party.

Appointment of
agents .
30. (1) A political party may appoint one agent for its
candidates at each polling station .

(2) A candidate nominated by a political party may
appoint an agent of the candida te‘s ch oic e.

(3) An independent candidate may appoint his own
agent.

Nomination of
political party
candidates.
31. (1) A person qualifies to be nominated by a political
party for presidential, parliamentary and county elections for
the purposes of Articles 97 , 98, 137, 177 and 180 of the

The Elections Act , 2011
28

Constitution if that person —

(a) is selected in the manner provided for in the
constitution or rules of the political party
concerned relating to members of that party who
wish to contest presidential, parliamentary and
county el ections; and
(b) subject to subsection (4), the party certifies the
nomination to the Commission.
(2) Each political party shall bear the expenses relating
to the nomination of candidates to contest in presidential,
parliamentary, county governor and county assembly
elections and a political party may, at its own expense and on
such terms as may be agreed between the party and the
Commission, request the Commission to supervise party
nominations of candidates.
(3) Every political party shall notify the Commis sion of
the name of the person authorised by the party to certify to the
Commission that a person has or persons have been selected
by the party under subsection (1) and the person or persons so
named shall deposit his or their specimen signature with the
Commission in such manner as the Commission may require.
(4) The authorised person or persons referred to in
subsection (4) shall, in writing, certify that a candidate has
been nominated by the party.

Approval of
symbol for
independent
candidate.
32. (1) A n independent candidate shall submit the
symbol the candidate intends to use during an election to the
Commission at least twenty one days before nomination day.

(2) The Commission shall, upon receipt of the symbol
submitted to it under subsection (1) appr ove or reject the

The Elections Act , 2011
29

symbol.

(3) The Commission may refuse to approve the symbol
of an independent candidate if the symbol —

(a) is obscene or offensive;
(b) is the symbol of another candidate or of a
political party; or
(c) so nearly resembles the symbol of another
can didate or political party or any other legal
entity registered under any other written law.

Nomination of
independent
candidates .

33. A person qualifies to be nominated as an independent
candidate for presidential, parliamentary and county elections
for t he purposes of Articles 97, 98, 137, 177, and 180 of the
Constitution if that person —

(a) has not been a member of any political party for at
least three months preceding the date of the election;
(b) has submitted to the Commission on the day
appointed by the Co mmission as the nomination day,
a duly filled nomination paper as the Commission
may prescribe;
(c) has submitted the symbol that the person intends to
use during the election; and
(d) is selected in the manner provided for in the
Constitution and by this Act .

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30

Nomination of party lists members

Nomination of
party lists
members.

34. (1) The election of members for the National
Assembly, Senate and county assemblies for party list seats
specified under Articles 97 (1) (c) and 98 (1) (b) (c) and (d)
and Articl e 177 (1) (b) and (c) of the Constitution shall be on
the basis of proportional representation and in accordance
with Article 90 of the Constitution.

(2) A political party which nominates a candidate for
election under Article 97 (1) (a) and (b) shall sub mit to the
Commission a party list in accordance with Article 97 (1) (c)
of the Constitution.
(3) A political party which nominates a candidate for
election under Article 98 (1) (a) shall submit to the
Commission a party list in accordance with Article 98 (1) (b)
and (c) of the Constitution.
(4) A political party which nominates a candidate for
election under Article 177 (1) (a) shall submit to the
Commission a party list in accordance with Article 177 (1) (b)
and (c) of the Constitution.
(5) The party list s under subsection (2), (3) and (4) shall
be submitted in order of priority.
(6) The party lists submitted to the Commission under
this section shall be in accordance with the constitution or
nomination rules of the political party concerned.
(7) The party lists submitted to the Commission shall be
valid for the term of Parliament.
(8) A person who is nominated by a political party under
subsection (2), (3) and (4) shall have been a member of the
political party for at least three months preceding the date of

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31

submission of the party list by the political party.
(9) The party list may not contain a name of any
Presidential or Deputy Presidential candidate nominated for
an election under this Act.
(10) A party list submitted for purposes of subsection
(2), (3) , (4) and (5) shall not be amended during the term of
Parliament or the county assembly, as the case may be, for
which the candidates are elected.

Submission of
party lists.

35. (1) A political party shall submit its party list to the
Commission on the s ame day as the day designated for
submission to th e Commission by political parties of
nominations of candidates for an election before the
nomination of candidates under Article 97 (1) (a) and (b), 98
(1) (a) and 177 (1) (a) of the Constitution.

Alloc ation of
special seats.

36. (1) A party list submitted by a political party under —

(a) Article 97 (1) (c) of the Constitution shall
include twelve candidates;
(b) Article 98 (1) (b) of the Constitution shall
include sixteen candidates;
(c) Article 98 (1) (c) of the Cons titution shall
include two candidates;
(d) Article 98 (1) (d) of the Constitution shall
include two candidates;
(e) Article 177 (1) (b) of the Constitution shall
include a list of the number of candidates
reflecting the number of wards in the county ;

The Elections Act , 2011
32

(f) Article 177 ( 1) (c) of the Constitution shall
include eight candidates, four of whom shall
be persons with disability and four of whom
shall be the youth .

(2) A party list submitted under subsection (1) (a), (c),
(d), (e) and (f) shall contain alternates between male and
female candidates in the priority in which they are listed.

(3) The party list referred to under subsection (1) (f)
shall prioritise a person with disability, the youth and any
other candidate representing a marginalized group.

(4) Within thirty days after the declaration of the
election results, the Commission shall designate, from each
qualifying list, the party representatives on the basis of
proportional representation.

(5) The allocation of seats by the Commission under
Article 97 (1) (c) of the Constitution will be proportional to
the number of seats won by the party under Article 97 (1) (a)
and (b) of the Constitution.

(6) The allocation of seats by the Commission under
Article 98 (1) (b), (c) and (d) of the Constitution shall be
proportional to the number of seats won by the party under
Article 98 (1) (a) of the Constitution.

(7) For purposes of Article 177 (1) (b) of the
Constitution, the Commission shall draw from the list under
subsection (1)(e), such number of special seat members in the
order given by the party, necessary to ensure that no more
than two -thirds of the membership of the assembly are of the
same gender.

(8) For purposes of Article 177(1)(c) of the
Constitution, the Commission shall draw from the list under

The Elections Act , 2011
33

sub section (1)(f) four special seat members in the order given
by the party.

(9) The allocation of seats by the Commission under
Article 177 (1) (b) and (c) of the Constitution shall be
proportional to the number of seats won by the party under
Article 177 (1) (a) of the Constitution.

Re-allocation of
special seat.

37. (1) If a representative from a political party list dies,
withdraws from the party list, changes parties, resigns or is
expelled from his or her party during the term of the
representative, the seat of the representative shall be allocated
to the next candidate of the same gender on the respective
political party list.

(2) Notwithstanding the provision of section 34 (10), if
there are no more candidates on the same party’s list, the
Commission shall require t he concerned political party to
nominate another candidate within twenty -one days.

(3) A vacancy in any seat in a political party list shall
not be filled three months immediately before a general
election.

(4) Where a political party fails to comply with the
provisions of subsection (2) the Commission shall not allocate
the seat for the remainder of the term of Parliament or the
county assembly.

Holding of
elections.

38. (1) After a notice has been published in the Gazette
under section 14 or 16, every returnin g officer shall proceed
to hold a presidential or county governor election as the case
may be according to the terms of the notice and in accordance
with the Regulations relating to elections.

(2) After receiving a notice under section 17 or 19 , the
retur ning officer to whom it is addressed shall proceed to hold

The Elections Act , 2011
34

the election according to the terms of the relevant notice
published under subsection (4) of that section and in
accordance with the Regulations relating to elections.

Determination and
declara tion of
results.
39. (1) The Commission shall determine, declare and
publish the results of an election immediately after close of
polling.

(2) Before determining and declaring the final results
of an election under subsection (1), the Commission may
announce the provisional results of an election.

(3) The Commission shall announce the provisional
and final results in the order in which the tallying of the
results is completed .

Voter education.
40. The Commission shall, in performing its duties
under Article 88 (4) (g) of the constitution establish
mechanisms for the provision of continuous voter education
and cause to be prepared a voter education curriculum.

Access to and
obligation of
media.
41. (1) Subject to subsection (2), a political party
participating in an election shall have access to the state
owned media services during the campaign period.

No. 3 of 2007.
(2) T he Commission shall, after consultations with the
candidates, the political parties concerned and the officers
responsible for the state owned media services, monitor the
equitable allocation of air -time during the campaign period.

(3) Every state owned print or electronic media which
publishes any information relating to the electoral process
shall be guided by the principle of total impartiality and shall
refrain from any discrimination in relation to any candidate.

(4) The Code of Conduct for the practice of journalism
prescribed under the Media Act shall be subscribed to and

The Elections Act , 2011
35

observed by every media house and every person who reports
on any election and referendum under the Constitution and
this Act.

(5) For the purpose of giving effect to this section, the
Commission may, in writing, issue directives to the media.

(6) The Commission may prohibit a media house that
contraven es the Code of Conduct prescribed under the Media
Act from transmitting information related to an election under
this Act.

Accreditation of
observers, agents,
reporters, etc
42. The Commission may at any election accredit —

(a) a person as an observer, agent o r media
representative; or

(b) any person or institution to report on an election.

Participation in
elections by public
officers.
43. (1) A public officer shall not —

(a) engage in the activities of any political party or
candidate or act as an agent of a p olitical party
or a candidate in an election;
(b) publicly indicate support for or opposition
against any party, side or candidate participating
in an election;
(c) engage in political campaigns or other political
activity; or

(d) use public resources to initiate ne w
development projects in any constituency or
county three months before an election in that
constituency or county.

The Elections Act , 2011
36

(2) A public officer who contravenes subsection (1)
commits an offence and is liable on conviction, to a fine not
exceeding one million sh illings or to imprisonment for a term
not exceeding three years, or to both.

(3) A person who knowingly aids in contravention of
subsection (1) commits an offence and is liable, on
conviction to a fine not exceeding one million shillings or to
imprisonment fo r a term not exceeding three years, or to both
such fine and imprisonment.

(4) A candidate who knowingly aids in contravention
of subsection (1) shall not be eligible to contest in the
election.

(5) A public officer who intends to contest an election
under this Act shall resign from public office at least seven
months before the date of election.

(6) This section shall not apply to –

(a) the President;
(b) the Prime Minister;
(c) the Deputy President;
(d) a member of P arliament;
(e) a county governor;
(f) a deputy county governor;
(g) a member of a county assembly.

Use of technology. 44. The Commission may use such technology as it
considers appropriate in the electoral process.

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37

PART IV — RECALL OF MEMBER OF
PARLIAMENT

Right of recall. 45. (1) The electorate in a county or constituency may
recall their member of Parliament before the end of the term
of the relevant House of Parliament on any of the grounds
specified in subsection (2).

(2) A member of Parliament may be recalled where the
member —
(a) is found, after due process of the law, to have
violated the provisions of Chapter Six of the
Constitution;
(b) is found, after due process of the law, to have
mismanaged public resources;
(c) is convicted of an offence under this Act.
(3) A recall of a member of Parliament under subsection
(1) shall only be initiated upon a judgement or finding by the
High Court confirming the grounds specified in subsection
(2).

(4) A recall under subsection (1) shall only be initiated
twenty -four months after the election of the member of
Parliament and not later than twelve months immediately
preceding the next general election.

(5) A recall petition shall not be filed against a member
of Parliament more than once during the term of that member
in Parliament .

(6) A person who unsuccessfully contested an election
under this Act shall not be eligible, directly or indirectly, to
initiate a petition under this section.

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38

Petition for recall. 46. (1) A recall under se ction 45 shall be initiated by a
petition which shall be filed with the Commission and which
shall be —

(a) in writing;

(b) signed by a petitioner who —

(i) is a voter in the constituency or county in
respect of which t he recall is sought; and

(ii) was registered to vote in the election in
respect of which the recall is sought;

(c) accompanied by an order of the High Court issued
in terms of section 45 (3).

(2) The petition referred to in subsect ion (1) shall —

(a) specify the grounds for the recall as specified under
section 45 (2);
(b) contain a list of such number of names of voters in
the constituency or county which shall represent at
least thirty percent of the registered vote rs; and
(c) be accompanied by the fee prescribed for an
election petition .

(3) The list of names referred to in subsection (2) (b)
shall contain the name s, address, voter card number, national
identity card or passport number and signature of the voters
supporting the petition and shal l contain names of at least
fifteen percent of the voters in more than half of the wards in
the county or the constituency, as appropriate.

The Elections Act , 2011
39

(4) The voters supporting a petition under subsection
(3) shall represent the diversity of the people in the county or
the constituency as the case may be.

(5) The petitioner shall collect and submit to the
Commission the list of names under subsection (2) (b) within
a period of thirty days after filing the petition.

(6) The Commission shall verify the list of names with in
a period of thirty days of receipt of that list.

(7) The Commission, if satisfied that the requirements
of this section are met, shall within fifteen days after the
verification, issue a notice of the recall to the Speaker of the
relevant House.

(8) The Commi ssion shall conduct a recall election
within the relevant constituency or county within ninety days
of the publication of the question.

Recall elections . 47. (1) Where a member of Parliament is to be recalled
under section 45, the Commission shall frame t he question to
be determined at the recall election.

(2) A question referred to in subsection (1) shall be
framed in such a manner as to require the answer ―yes‖ or the
answer ―no‖.

(3) The Commission shall assign a symbol for each
answer to the recall question.

(4) The voting at a recall election shall be by secret
ballot.

(5) A recall election shall be decided by a simple
majority of the voters voting in the recall election.

The Elections Act , 2011
40

(6) Where a recall election results in the removal of a
member of Parliament, the Commission sha ll conduct a by –
election in the affected constituency or county.

(7) A member of Parliament who has been recalled
may run in the by -election conducted under subsection (6).

Validity of recall
election. 48. A recall election shall be valid if the number of
voters who concur in the recall election is at least fifty percent
of the total number of registered voters in the affected county
or constituency.

PART V — REFERENDUM

Initiation of a
referendum .
49. (1) Whenever it is necessary to hold a referendum on
any issue, the President shall by notice refer the issue to the
Commission for the purposes of conducting a referendum.

(2) Where an issue to be decided in a referendum has
been referred to the Commission under subsection (1), the
Commission shall frame the q uestion or questions to be
determined during the referendum.

(3) The Commission shall, in consultation with the
Speaker of the relevant House, lay the question referred to in
subsection (2) before the House for approval by resolution.

(4) The National As sembly may approve one or more
questions for a referendum.

(5) The Commission shall publish the question
approved under subsection (4) in the Gazette and in the
electronic and print media of national circulation.

(6) The Commission shall conduct the referend um

The Elections Act , 2011
41

within ninety days of publication of the question.

(7) The Commission may assign such symbol for each
answer to the referendum question or questions as it may
consider necessary.

(8) A symbol assigned under subsection (7) shall not
resemble that of a political party or of an independent
candidate.

Notice of holding
referendum. 50. (1) The Commission shall, within fourteen days after
publication of the question referred to in section 49 publish a
notice of the holding of the referendum and the details t hereof
in the Gazette , in the electronic and print media of national
circulation

(2) The notice shall specify —

(a) the referendum question or questions and the option
of the answer or answers;

(b) the symbols assigned for the answers to the
referendum question ;

(c) the day on which the referendum is to be held
which shall not be less than twenty one days after
the date of the publication of the notice;

(d) the polling time of the referendum;

(e) the day by which the referendum committees shall
have registered with the C ommission; and

(f) the day and time by which campaign in support of
or in opposition to the referendum question shall
start and cease.

The Elections Act , 2011
42

Referendum
Committees .
51. (1) Where a referendum question requires a ―yes‖ or
―no‖ answer, persons intending to campaign fo r or against the
referendum question shall form such national referendum
committee s and constituency committees as are necessary .

(2) Where there is more than one referendum question,
persons intending to campaign for or against each referendum
question s hall, on application to the Commission, form one
national referendum committee each and one committee each
in every constituency for each referendum question.

(3) A referendum committee shall apply to the
Commission for registration in the prescribed form .

(4) An application under subsection (3) shall be
accompanied by information showing that the applicant
adequately represents persons campaigning for or against the
referendum question.

(5) The national referendum committees shall control
and regulate the c onstituency referendum committees.

(6) A member of a referendum committee shall
subscribe to and abide by the Electoral Code of Conduct set
out in the Second Schedule.

Costs of
referendum
committee.
52. (1) Each referendum committee shall bear its own
cos ts during the campaign period of the referendum.

(2) The costs referred to in subsection (1) include
payment of the agents of the respective referendum
committees.

Procedure for
conduct of
referendum.
53. The procedure for the conduct of an election shall
apply with necessary modifications to the conduct of
referendum.

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43

Voting threshold. 54. A referendum question on an issue other than that
contemplated in Articles 255 and 256 of the Constitution shall
be decided by a simple majority of the citizens voting in the
referendum.

General power of
the Commission.

55. Nothing in this Act shall preclude the Commission
from taking any administrative measures to ensure effective
conduct of the referendum.

PART VI — ELECTION OFFENCES

Offences relating
to regist er of
voters and voter‘s
cards.
56. A person who —

(a) without authority makes, prepares, prints or is in
possession of a document or paper purporting to be
a register of voters;

(b) without authority makes, prepares or prints a
document or paper purporting to be a v oter‘s card;

(c) not being a person authorised to be in possession of
a voter‘s card bearing the name of another person or
which has not been written in the name of any
person, has such voter‘s card in his possession;

(d) without authority supplies a voter‘s ca rd to any
person;

(e) without authority destroys, damages, defaces or
makes any alteration on a voter‘s card;

(f) sells or offers for sale a voter‘s card to any person
or purchases or offers to purchase a voter‘s card
from any person;

(g) knowingly makes any fal se statement on, or in
connection with any application to be registered in

The Elections Act , 2011
44

any register of voters; or

(h) aids, abets, counsels or procures the commission of
or attempts to commit any of the offences referred
to in paragraphs (a) to (f),

commits an offence a nd is liable on conviction, to a fine not
exceeding one million shillings and to imprisonment for a
term not exceeding six years or to both.

Offences relating
to multiple
registrations as a
voter.
57. (1) A person who —

(a) being registered as a voter in a reg ister of voters
applies to be registered as a voter —

(i) in any other register of voters, otherwise than in
substitution for his subsisting registration; or

(ii) in the same register of voters;

(b) having applied to be registered in a register of
voters which appli cation has not been either granted
or rejected, applies to be registered in the same
register of voters or in another register of voters;

(c) simultaneously makes two or more applications to
be registered as a voter; or

(d) having been disqualified by an electio n court,
applies to be registered as a voter,

commits an offence is liable on conviction, to a fine not
exceeding one hundred thousand shillings or to imprisonment
for a term not exceeding one year or to both.

(2) Any person who commits an offence under
subsection (1) shall, in addition to the penalty provided in

The Elections Act , 2011
45

subsection (1), not be eligible to vote in that election or in the
next election.

(3) A memb er or officer of the Commission or a person
who aids another person to register as a voter more than o nce
commits an offence and is liable on conviction, to a fine not
exceeding one hundred thousand shillings or to imprisonment
for a term not exceeding one year or to both.

(4) A candidate who aids a person to register as a voter
more than once, commits an offence and is liable on
conviction, to a fine not exceeding one hundred thousand
shillings or to imprisonment for a term not exceeding one year
or to both and shall not be eligible to contest in the ongoing
general election.

Offences relating
to voti ng.

58. A person who —

(a) forges, counterfeits, defaces or destroys any ballot
paper or the official perforation, stamp or mark on
any ballot paper;

(b) without authority supplies any ballot paper to any
person;

(c) sells or offers for sale any ballot paper to any
person, purchases or offers to purchase any ballot
paper from any person;

(d) not being a person entitled to be in possession of
any ballot paper which has been marked with any
official perforation, stamp or mark has any such
ballot paper in his possession;

(e) puts into any ballot box anything other than the
ballot paper which he is authorised by law to put in;

The Elections Act , 2011
46

(f) without authority takes out of a polling station any
ballot paper or is found in possession of any ballot
paper outside a polling station;

(g) not b eing an election official and not being
authorised, removes election material from a
polling station before, during or after an election;

(h) without authority destroys, takes, opens, disposes of
or otherwise interferes with any election material in
use or in tended to be used for the purposes of an
election;

(i) without authority prints any ballot paper or what
purports to be or is capable of being used as a ballot
paper at an election;

(j) for the purposes of an election, manufactures,
constructs, imports, has in his possession, supplies
or uses, or causes to be manufactured, constructed,
imported, supplied or used, any appliance, device or
mechanism by which a ballot paper may be
extracted, affected or manipulated after having been
deposited in a ballot box durin g the polling at any
election;

(k) not being authorised to do so under this Act, makes
any mark on any ballot paper issued to any person
other than to himself;

(l) votes at any election when they are not entitled to
vote;

(m) votes more than once in any election;

(n) interferes with a voter in the casting of his vote in
secret;

The Elections Act , 2011
47

(o) pretends to be unable to read or write so as to be
assisted in voting; or

(p) pretends to be visually impaired or suffering from
any other disability so as to be assisted in voting,

commits an offence and is liable on conviction, to a fine not
exceeding one million shillings or to imprisonment for a term
not exceeding six years or to both.

Offences by
members and staff
of the
Commission.
59. (1) A member of the Commission, staff or other
per son having any duty to perform pursuant to any written
law relating to any election who —

(a) makes, in any record, return or other document
which they are required to keep or make under such
written law, an entry which they know or have
reasonable cause to be lieve to be false, or do not
believe to be true;

(b) permits any person whom they know or have
reasonable cause to believe to be able to read or
write to vote in the manner provided for persons
unable to read or write;

(c) permits any person whom they know or h ave
reasonable cause to believe not to be visually
impaired or a person with disability to vote in the
manner provided for persons who are visually
impaired or persons with disability, as the case may
be;

(d) wilfully prevents any person from voting at th e
polling station at which they know or have
reasonable cause to believe such person is entitled
to vote;

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48

(e) wilfully rejects or refuses to count any ballot paper
which they know or have reasonable cause to
believe is validly cast for any candidate in
accordance with the provisions of such written law;

(f) wilfully counts any ballot paper as being cast for
any candidate which they know or have reasonable
cause to believe was not validly cast for that
candidate;

(g) interferes with a voter in the casting of h is vote in
secret;

(h) where required under this Act or any other law to
declare the result of an election , fails to declare the
results of an election;

(i) except in the case of a member, officer or person
authorised to do so, purports to make a formal
declara tion or formal announcement of an election
result;

(j) without reasonable cause does or omits to do
anything in breach of his official duty;

(k) colludes with any political party or candidate for
purposes of giving an undue advantage to the
political party or c andidate;

(l) wilfully contravenes the law to give undue
advantage to a candidate or a political party on
partisan, ethnic, religious, gender or any other
unlawful considerations; or

(m) fails to prevent or report to the Commission and any
other relevant authori ty, the commission of an

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49

electoral malpractice or offence committed under
this Act,

commits an offence and is liable on conviction, to a fine not
exceeding one million shillings or to imprisonment for a term
not exceeding three years or to both.

Mai ntenance of
secrecy at
elections.
60. (1) Every elections officer, candidate or agent
authorised to take part in any proceedings relating to the issue
or receipt of ballot papers or to attend at a polling station or at
the counting of the votes shall, before s o attending, make an
oath of secrecy prescribed in the Third Schedule.

(2) Every officer, candidate or agent in attendance at a
polling station shall —

(a) maintain and aid in maintaining the secrecy of the
ballot ; and

(b) not communicate, except for a purpose a uthorised
by law before the poll is closed, any information as
to the name or number on the register of voters, of
any voter who has or has not applied for a ballot
paper or voted at that station or as to the official
mark.

(3) A presiding officer may, upon r equest, divulge to a
candidate or to the agent of a candidate the total number of
voters who have voted in the station at any time before the
poll is closed.

(4) An election officer, candidate, agent or other person
shall not —

(a) without authority, obtain or at tempt to obtain, in a
polling station, information as to the candidate for
whom any voter in the station is about to vote or

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50

has voted;

(b) communicate at any time to any person, any
information obtained in a polling station as to the
candidate for whom any v oter in the station is about
to vote or has voted; or

(c) disclose the serial number of the ballot paper issued
to any voter at the station.

(5) No person, except a presiding officer or a person
authorised by the presiding officer, shall communicate with
any vot er after the voter has received a ballot paper and before
the voter has placed the ballot paper in a ballot box.

(6) Every election officer, candidate, or agent in
attendance at the counting of votes shall maintain and aid in
maintaining, the secrecy of the ballot , and shall not attempt to
ascertain at such counting the number of any ballot paper, or
communicate any information obtained at such counting as to
the candidate for whom any vote is given by any particular
ballot paper.

(7) A person attending any proce edings relating to an
election shall maintain and aid in maintaining the secrecy of
the ballot and shall not without lawful excuse —

(a) communicate, before the poll is closed to any
person, any information obtained at those
proceedings as to any official perf oration, stamp or
mark to be used in connection with any paper;

(b) communicate to any person at any time any
information obtained at those proceedings as to the
number of ballot papers issued to any person;

(c) attempt to ascertain at the proceedings in

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51

connec tion with the receipt of ballot papers, the
number on any ballot paper;

(d) attempt to ascertain at the proceedings in
connection with the receipt of the ballot papers the
candidate for whom any vote is given in any
particular ballot paper or communicate any
information with respect thereto obtained at those
proceedings; or

(e) capture an image of any marked ballot for purposes
of financial gain or for showing allegiance.

(8) A person who contravenes the provisions of this
section commits an offence and is liable o n conviction, to a
fine not exceeding one million shillings or to imprisonment
for a term not exceeding three years or to both.

Personation.

61. (1) A person, who at an election —

(a) applies for a ballot paper in the name of another
person, or of a fictitiou s person;

(b) having voted once at any such election, votes again
or applies at the same election for a ballot paper in
his own name;

(c) votes with the knowledge that he is not entitled to
vote in that election; or

(d) presents himself as an election official kn owing that
he is not,

commits the offence of personation, which shall be
cognizable.

(2) For the purposes of this section, a person who has

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52

applied for a ballot paper for the purpose of voting shall be
deemed to have voted.

Treating. 62. (1) A candidate who corruptly, for the purpose of
influencing a voter to vote or refrain from voting for a
particular candidate or for any political party at an election —

(a) before or during an election —

(i) undertakes or promises to reward a voter to
refrain from voting;

(ii) gives, causes to be given to a voter or pays,
undertakes or promises to pay wholly or in part
to or for any voter, expenses for giving or
providing any food, drinks refreshment or
provision of any money, ticket or other means
or device to enable the procurem ent of any
food, drink or refreshment or provision to or for
any person for the purpose of corruptly
influencing that person or any other person to
vote or refrain from voting for a particular
candidate at the election or being about to vote
or refrain fr om voting, for a particular
candidate, at the election; or

(b) after an election, gives, provides or pays any
expense wholly or in part to or for any particular
voter or any other voter for having voted or
refrained from voting as aforesaid,

commits the offe nce of treating.

(2) A voter who accepts or takes any food, drink,
refreshment, provision, any money or ticket, or adopts other
means or devices to enable the procuring of food, drink,

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53

refreshment or provision knowing that it is intended to
influence them com mits the offence of treating.

Undue influence. 63. (1) A person who, directly or indirectly in person or
through another person on his behalf uses or threatens to use
any force, violence including sexual violence, restraint, or
material, physical or sp iritual injury, harmful cultural
practices, damage or loss, or any fraudulent device, trick or
deception for the purpose of or on account of —

(a) inducing or compelling a person to vote or
not to vote for a particular candidate or
polit ical party at an election;

(b) impeding or preventing the free exercise of
the franchise of a voter;

(c) inducing or compelling a person to refrain
from becoming a candidate or to withdraw
if he has become a candidate; or

(d) impeding or preventing a p erson from
being nominated as a candidate or from
being registered as a voter,

commits the offence of undue influence.

(2) A person who induces, influences or procures any
other person to vote in an election knowing that the person is
not entitled to vot e in that election commits an offence.

(3) A person who directly or indirectly by duress or
intimidation —

(a) impedes, prevents or threatens to impede or prevent
a voter from voting; or

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54

(b) in any manner influences the result of an election,

commits an offence.

(4) A person who directly or indirectly by duress,
intimidation or otherwise compels or induces any voter who
has already voted at an election —

(a) to inform that person or any other person of the
name of the candidate or political party for which
the voter has v oted; or

(b) to display the ballot paper on which the voter has
marked his vote,

commits an offence.

Bribery. 64. (1) A candidate who —

(a) directly or indirectly in person or by any other
person on his behalf gives, lends or agrees to give
or lend, or offers, p romises or promises to procure
or to endeavour to procure any money or valuable
consideration to or for any voter, or to or for any
person on behalf of any voter or to or for any other
person in order to induce any voter —
(i) to vote or refrain from voting for a particular
candidate;
(ii) to attend or participate in or refrain from
attending or participating in any political
meeting, march, demonstration or other event of
a political nature or in some other manner
lending support to or for an political party or
cand idate;

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55

(iii) corruptly does any such act on account of such
voter having voted for or refrained from voting
at any election, for a particular candidate; or
(b) directly or indirectly, in person or by any other
person on his behalf, gives or procures or agrees to
give or procure, or offers, promises, or promises to
procure or to endeavour to procure, any office,
place, or employment to or for any voter, or to or
for any person on behalf of any voter, or to or for
any other person, in order to induce any v oter —

(i) to vote for or refrain from voting for a particular
candidate; or

(ii) corruptly does any such act on account of such
voter having voted for or refrained from voting;

(c) in any manner unlawfully influences the result of an
election;

(d) directly or indirectl y, in person or by any other
person on his behalf, makes any gift, loan, offer,
promise, procurement, or agreement to or for any
person in order to induce that person to —

(i) procure or endeavour to procure the election
of any person; or

(ii) procure the vo te of any voter at any election;

(e) upon or in consequence of any gift, loan, offer,
promise, procurement or agreement, procures or
engages, promises or endeavours to procure, the
election of any person, or the vote of any voter at an
election;

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56

(f) advances, p ays or causes to be paid any money to, or
to the use of any other person with the intent that
such money or any part thereof shall be used in
bribery at any election, or who knowingly pays or
causes to be paid any money to any person in
discharge or repaym ent of any money wholly or in
part used in bribery at any election;

(g) being a voter, before or during any election directly
or indirectly, in person or by any other person on
his behalf receives, agrees or contracts for any
money, gift, loan, or valuable co nsideration, office,
place or employment for himself or for any other
person, for voting or agreeing to vote or for
refraining or agreeing to refrain from voting for a
particular candidate at any election;

(h) after any election, directly or indirectly in per son or
by any other person on his behalf, receives any
money or valuable consideration on account of any
person having voted or refrained from voting or
having induced any other person to vote or to
refrain from voting for a particular candidate at the
ele ction;

(i) directly or indirectly, in person or by any other
person on his behalf, on account of and as payment
for voting or for having voted or for agreeing or
having agreed to vote for any candidate at an
election, or an account of and as payment for his
having assisted or agreed to assist any candidate at
an election, applies to the candidate or to the agent
of the candidate for a gift or loan of any money or
valuable consideration, or for the promises of the
gift or loan of any money or valuable considera tion
or for any office, place or employment or for the
promise of any office, place or employment; or

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57

(j) directly or indirectly, in person or by any person on
his behalf, in order to induce any other person to
agree to be nominated as a candidate or to refra in
from becoming a candidate or to withdraw if they
have become candidates, gives or procures any
office, place or employment to endeavour to
procure any office, place or employment, to or for
such other person, or gives or lends or agrees to
give or lend, or offers or promises to procure or to
endeavour to procure any money or valuable
consideration to or for any person or to or for such
other person on behalf of such other or to or for any
person,

commits the offence of bribery.

(2) Any person who in co nsequence of that person‘s
acceptance of any consideration votes or refrains from voting
commits an offence.

Use of force or
violence during
election period.
65. A person who, directly or indirectly in person or by
any other person on his behalf, inflicts or threatens to inflict
injury, damage, harm or loss on or against a person —

(a) so as to induce or compel that person to support a
particular candidate or political party;

(b) on account of such person having voted or refrained
from voting; or

(c) in order to in duce or compel that person to vote in a
particular way or refrain from voting,

commits an offence and is liable on conviction to a fine not
exceeding one million shillings or to imprisonment for a term
not exceeding five years or to both.

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Use of natio nal
security organs. 66. A candidate, or any other person who uses a public
officer, or the national security organs to induce or compel
any person to support a particular candidate or political party
commits an offence and is liable on conviction to a fine not
exceeding ten million shillings or to imprisonment for a term
not exceeding six years or to both.

Offences relating
to elections. 67. (1) A person who —

(a) commits the offence of personation, treating, undue
influence or bribery;

(b) prints, publishes , distributes or posts up, or causes to
be printed, published, distributed or posted up, any
advertisement, handbill, placard or poster which
refers to any election and which does not bear upon
its face the names and addresses of the printer and
publisher;

(c) makes or publishes, before or during any election,
for the purpose of promoting or procuring the
election of any candidate, any false statement of
withdrawal of any other candidate at such election;

(d) forges, defaces or destroys any nomination pap er,
or delivers to a returning officer any nomination
paper knowing it to be forged;

(e) interferes with election material by removing,
destroying, concealing or mutilating or assists in the
removal, destruction, concealment or mutilation of
any such material save on the authority of the
Commission or under the provisions of this Act;

(f) directly or indirectly prints, manufactures or
supplies or procures the printing, manufacture or

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59

supply of any election material in connection with
the election save on the auth ority of the
Commission;

(g) interferes with free political canvassing and
campaigning by —

(i) using language which is threatening, abusive or
insulting or engages in any kind of action
which may advocate hatred, incite violence or
influence the voters on groun ds of ethnicity,
race, religion, gender or any other ground of
discrimination;
(ii) directly or indirectly, using the threat of force,
violence, harassment or otherwise preventing
the conduct of any political meeting, march,
demonstration or other event of a po litical
nature or any other person from attending or
participating therein;
(iii) creating a material disruption with the intention
of preventing a political party from holding a
public political meeting;
(iv) impeding, preventing or threatening to impede
or prevent the right of any representative of any
political party from gaining access, in the
manner and during the hours prescribed to
voters in any particular area, whether public or
private for the purposes of canvassing and
campaigning and soliciting membership a nd
support; or
(v) impeding, preventing or threatening to impede
or prevent a member of the Commission, a
representative of the Commission or any other
authorised person or organisation engaged in

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60

voter education from gaining access, in the
manner and during t he hours prescribed, to
voters in any particular area, whether public or
private, for the purposes of conducting voter
education.
(h) refuses or fails to effect a direction, instruction or
lawful order issued by or on behalf of the
Commission;

(j) refus es or fails to leave an election counting centre
or any area designated by the Commission for
electoral purposes when so ordered in accordance
with this Act;

(j ) enters or remains in an election centre or in any area
designated by the Commission for elec toral
purposes in contravention of this Act;

(k) obstructs or hinders any elections officer, candidate
or agent in the execution of their lawful duties;

(l) makes a false statement or furnishes false particulars
in any statement which is required under this Act
knowing the statement or particulars to be false or
without reasonable grounds for believing the same
to be true; or

(m) publishes, repeats or disseminates in any manner
whatsoever, information with the intention of —

(i) disrupting or preventin g the election;

(ii) creating hostility or fear in order to influence
the process or outcome of the election; or

(iii) otherwise unlawfully influencing the process or

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61

outcome of the election, or aids, abets counsels
or procures the Commission of or attempts to
com mit any such offence;

(n) forges, defaces or destroys any campaign or
promotional material of an opposing candidate or
political party,

commits an offence and is liable on conviction, in the cases
specified in paragraph (a), to a fine not exceeding one million
shillings or to imprisonment for a term not exceeding six
years or to both, and in any other case, to a fine not exceeding
five hundred thousand shillings or to imprisonment for a term
not exceeding five years or to both.

(2) The offences specifie d in subsection (1)(a) shall be
cognizable.

Use of public
resources .
68. (1) Except as authorised under this Act or any other
written law, a candidate, referendum committee or other
person shall not use public resources for the purpose of
campaigning durin g an election or a referendum.

(2) For the purposes of this section, the Commission
shall, in writing require any candidate, who is a member of
Parliament, a county governor, a deputy county governor or a
member of a county assembly, to state the faciliti es attached
to the candidate or any equipment normally in the custody of
the candidate by virtue of that office.

(3) A person who is requested to supply information
required under subsection (2) shall submit the information
within a period of fourteen day s from the date of the notice.

(4) The provisions of subsection (2) shall apply with
necessary modifications, to an employee of a statutory
corporation or of a company in which the Government owns a

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controlling interest.

(5) A person who fails to comply with the provisions of
this section commits an offence and is liable on conviction to
a fine not exceeding two million shillings or imprisonment for
a term not exceeding six years or to both.

(6) A member of the Commission or any person
designated by the Commission shall have the power to
impound or to order the impounding of any state resources
that are unlawfully used in an election campaign.

(7) A candidate, who after conviction under this section
repeats the offence, shall –

(a) be disqualified by the Com mission and shall not be
eligible to participate in the ongoing election and
the next election; and

(b) be disqualified from holding any public office.

Illegal Practices

Certain
expenditure illegal
practice.
69. (1) A payment, contract for payment or any other
consideration of any kind shall, for the purpose of promoting
or procuring the election of a candidate at any election, not be
made —

(a) on account of the conveyance of voters to or from
the poll, whether for the hiring of vehicles, vessels
or animals of transport of any kind whatsoever, or
for railway fares, or otherwise; or

(b) to or with a voter on account of the use of any
house, land, building, or premises for the exhibition
of any address, bill or notice, or no account of the
exhibition of any addres s bill or notice.

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63

(2) Upon the filing of an election petition in respect of
an electoral area and prior to the conclusion of a by -election
in respect of that electoral area where a court determines that
a by -election is to be held, is shall be an offence to –

(a) knowingly register voters in the electoral area in
which the by -election is to be held;

(b) knowingly cause the registration of voters in the
electoral area in which the by –election is to be
held; or

(c) tra nsfer voters in substantial numbers to the
electoral area in which a by -election is to be held.

(3) Subject to any exception under this Act, if any
payment or contract for payment is knowingly made in
contravention of this section either before, during or after an
election, the person making such payment commits an offence
and any person receiving such payment or being a party to
any such contract knowing it to be in contravention of this
section commits the offence of an illegal practice.

(4) A person sh all not let, lend or employ, for the
purpose of conveying voters to and from the poll, any vehicle,
vessel, aircraft or animal of transport of any kind which they
keep or use for the purposes of letting out for hire.

(5) A person who lets, lends or employ s a vehicle,
vessel, aircraft, or animal of transport knowing that it is
intended to be used to convey voters to and from a poll
commits the offence of illegal practice.

(6) A person who hires, borrows or uses for the purpose
of conveying voters to and from a poll, any vehicle, vessel or
animal of transport of any kind whatsoever which he knows

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64

the owner thereof is prohibited by subsection ( 4) to let, lend
or employ for that purpose commit the offence of an illegal
practice.

(7) Nothing in subsection ( 4) or subse ction ( 6) shall
prevent an owner of a vehicle, vessel or animal of transport of
any kind from letting, hiring or being employed or used by a
voter or several voters at their joint cost for the purpose of
conveying the vote rs to or from a poll.

(8) Notwithstan ding anything in this section —

(a) where it is the ordinary business of a voter as an
advertising agent to exhibit for payment bills and
advertisements, a payment to or contract with such
voter if made in the ordinary course of business,
shall not be deemed t o be an illegal practice within
the meaning of this section; and

(b) where voters are unable at an election to reach their
polling stations from their place of residence
without crossing the sea or a tributary thereof or a
river, means may be provided for con veying the
voters to their polling stations or to enable them to
cross in order to reach their polling stations.

(9) The means of conveyance referred to in
subsection ( 8) (b) shall be made available equally to all voters
who wish to be conveyed to vote.

Employers to
allow employees
reasonable period
for voting.
70. (1) Every employer shall, on polling day, allow a
voter in his employ a reasonable period for voting, and no
employer shall make any deduction from the pay or other
remuneration of any such voter o r impose upon or exact from
them any penalty by reason of his absence during such period.

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65

(2) An employer who directly or indirectly refuses, or
by intimidation, undue influence, or in any other manner
interferes with the granting to any voter in his empl oy of a
reasonable period for voting as specified in subsection (1)
commits an offence and is liable on conviction to a fine not
exceeding one million shillings or to imprisonment for a term
not exceeding six years or to both.

(3) This section shall not e xtend to such categories of
employees as the Commission may, from time to time by
notice in the Gazette designate, or to an employee who at the
election in question is acting as an election officer within the
meaning of this Act.

(4) The provisions of thi s section shall bind the
Government.

Aiding and
abetting offences
under this Part.
71. (1) A person who aids, abets, counsels or procures the
commission of or attempts to aid, abet, counsel, or procure the
commission of an offence specified in this Part co mmits an
offence.

(2) An offence under subsection (1) shall be cognizable.

Election offence
by candidate or
political party.
72. (1) A candidate who, during a nomination or an
election campaign engages in or knowingly aids or abets an
agent or any person who supports the candidate to engage in
bribery violence or intimidation against the opponents of the
candidate or any other person, under this Part, shall be
disqualified by the Commission and shall not be eligible to
participate in the elections.

(2) Wh ere a political party knowingly nominates a
candidate who does not meet the requirements of the
Constitution, the political party commits an offence and shall
be disqualified from nominating a candidate to contest in that
election or in the next election i n that electoral area.

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66

(3) Where the offence under subsection ( 2) is
discovered —

(a) after the candidate has been nominated to
contest in an election, that candidate shall be
disqualified by the Commission and shall not
be eligible to contest in that e lection; or

(b) after the candidate has been elected, that
candidate shall be disqualified by the
Commission and shall not be eligible to
contest in the next election.

(4) Where a political party under subsection (2)
commits an election offence which the Com mission considers
to be of a grave nature or continuously repeats the offence, the
presidential candidate of the political party shall not be
eligible to contest in a presidential election during the
elections or subsequent election as a result of any vaca ncy in
the office of the President where the presidential candidate
knowingly abets or aids in the election offence .

Postponement of
elections by the
Commission.
73. (1) The Commission may, where election offences of
such a nature as to make it impossible for an election to
proceed are committed in a constituency , county or ward and
where it considers it necessary, postpone the elections in that
constituency or county for such a period as it may consider
necessary.

(2) Where a date has been appointed for h olding an
election and —

(a) there is reason to believe that a serious breach
of peace is likely to occur if the election is held
on that date; or

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67

(b) it is impossible to conduct the elections as a
result of a natural disaster or other
emergencies,

the Commissi on may postpone the election and shall in
respect of the constituency concerned, appoint another date
for the holding of the postponed election.

(3) Where an election is postponed under subsection (2),
the election shall be held at the earliest practicabl e time.

(4) Notwithstanding the provisions of this section, the
Commission may, if satisfied that the result of the elections
will not be affected by voting in the area in respect of which
substituted dates have been appointed, direct that a return of
the elections be made.

PART VII — ELECTION DISPUTES RESOLUTION

Dispute resolution by the Commission

Settlement of
certain disputes. 74. (1) Pursuant to Article 88 (4) (e) of the
Constitution, the Commission shall be responsible for the
settlement of e lectoral disputes, including disputes relating to
or arising from nominations but excluding election petitions
and disputes subsequent to the declaration of election results .

(2) An electoral dispute under subsection (1) shall be
determined within seven d ays of the lodging of the dispute
with the Commission.

(3) Notwithstanding subsection (2), where a dispute
under subsection (1) relates to a prospective nomination or
election, the dispute shall be determined before the date of the
nomination or election, whichever is applicable

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Election Petitions

County election
petitions. 75. (1) A question as to validity of a county election shall
be determined by High Court within the county or nearest to
the county.

(2) A question under subsection (1) shall be h eard and
determined within six months of the date of lodging the
petition.

(3) In any proceeding brought under this section, a court
may grant appropriate relief, including —
(a) a declaration of whether or not the candidate whose
election is questioned was va lidly elected;
(b) a declaration of which candidate was validly
elected; or
(c) an order as to whether a fresh election will be held
or not.

Presentation of
petitions. 76. (1) A petition —

(a) to question the validity of an election shall be filed
within twenty eight d ays after the date of
publication of the results of the election in the
Gazette and served within fifteen days of
presentation;

(b) to seek a declaration that a seat in Parliament or a
county assembly has not become vacant shall be
presented within twenty -eig ht days after the date of
publication of the notification of the vacancy by the
relevant Speaker; or

(c) to seek a declaration that a seat in Parliament has

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69

become vacant may be presented at any time.

(2) A petition questioning a return or an election upon
the ground of a corrupt practice, and specifically alleging a
payment of money or other act to have been made or done
since the date aforesaid by the person whose election is
questioned or by an agent of that person or with the privity of
that person or his agent may, so far as respects the corrupt
practice, be filed at any time within twenty -eight days after
the publication of the election results in the Gazette.

(3) A petition questioning a return or an election upon
an allegation of an illegal practice a nd alleging a payment of
money or other act to have been made or done since the date
aforesaid by the person whose election is questioned, or by an
agent of that person, or with the privity of that person or his
election agent in pursuance or in furtheranc e of the illegal
practice alleged in the petition, may, so far as respects the
illegal practice, be filed at any time within twenty -eighty days
after the publication of the election results in the Gazette;

(4) A petition filed in time may, for the purpose of
questioning a return or an election upon an allegation of an
election offence, be amended with the leave of the election
court within the time within which the petition questioning the
return or the election upon that ground may be presented.

(5) A pe tition filed in respect of the matters set out in
subsections (2) and (3) may, where a petition has already been
presented on other grounds, be presented as a supplemental
petition.

Service of petition. 77. (1) A p etition concerning an election, other than a
presidential election, shall be filed within twenty -eight days
after the declaration of the election results by the Commission.

(2) A petition may be served personally upon a

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respondent or by advertisement in a newspaper with national
circulation.

Security for costs. 78. (1) A petitioner shall deposit security for the
payment of costs that may become payable by the petitioner
not more than ten days after the presentation of a petition
under this Part.

(2) A person who presents a petition to challenge a n
election shall deposit —

(a) one million shillings, in the case of a petition
against a presidential candidate;

(b) five hundred thousand shillings, in the case of
petition against a member of Parliament or a county
governor; or

(c) one hundred thousand shillings, in the case of a
petition against a member of a county assembly.

(3) Where a petitioner does not deposit security as
required by this section, or if an objection is allowed and not
removed, no further proceedings shall be heard on the petition
and the re spondent may apply to the election court for an
order to dismiss the petition and for the payment of the
respondent’s costs.

(4) The costs of hearing and deciding an application
under subsection (3) shall be paid as ordered by the election
court, or if no ord er is made, shall form part of the general
costs of the petition.

(5) An election court that releases the security for costs
deposited under this section shall release the security after
hearing all the parties before the release of the security.

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Proc edure of
election court on
receipt of petition.
79. Upon receipt of a petition, an election court shall
peruse the petition and —

(a) if it considers that no sufficient ground for granting
the relief claimed is disclosed therein may reject the
petition summarily; or

(b) fix a date for the trial of the petition.

Powers of election
court. 80. (1) An election court may, in the exercise of its
jurisdiction —

(a) summon and swear in witnesses in the same manner
or, as nearly as circumstances admit, as in a trial by
a court in the exercise of its civil jurisdiction and
impose the same penalties for the giving of false
evidence;

(b) compel the attendance of any person as a witness
who appears to the court to have been concerned in
the election or in the circumstances of the vacancy
or alleged vacancy;

(c) examine a witness who is compelled to attend or
any other person who has not been called as a
witness in court, and examined by a party to the
petition and after examination the witness may be
cross examined by or on behalf of the pet itioner and
respondent or either of them; and

(d) decide all matters that come before it without undue
regard to technicalities.

(2) A person who refuses to obey an order to attend
court commits the offence of contempt of court.

(3) Interlocutory matters in connection with a petition

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challenging results of presidential, parliamentary or county
elections shall be heard and determined by the election court.

(4) An election court may by order direct the
Commission to issue a certificate of election to a President, a
member of Parliament or a member of a county assembly if —

(a) upon recount of the ballots cast, the winner is
apparent; and

(b) that winner is found not to have committed an
election offence.

(5) The Commission shall, in writing, notify the
relevant Speaker of t he decision made under subsection (4).

Prohibition of
disclosure of vote. 81. A voter who has voted at an election shall not, in
the proceedings of an election petition, be required to state
whom they voted for.

Scrutiny of votes. 82. (1) An election court may, on its own motion or on
application by any party to the petition, during the hearing of
an election petition, order for a scrutiny of votes to be carried
out in such manner as the election court may determine.

(2) Where the votes at the trial of an election petition are
scrutinized, only the following votes shall be struck off –

(a) the vote of a person whose name was not on the
register or list of voters assigned to the polling
station at which the vote was recorded or who had
not been authorised to vot e at that station;

(b) the vote of a person whose vote was procured by
bribery, treating or undue influence;

(c) the vote of a person who committed or procured the

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commission of personation at the election;

(d) the vote of a person proved to have voted in more
than one constituency;

(e) the vote of a person, who by reason of conviction
for an election offence or by reason of the report of
the election court, was disqualified from voting at
the election; or

(f) the vote cast for a disqualified candidate by a voter
knowing that the candidate was disqualified or the
facts causing the disqualification, or after sufficient
public notice of the disqualification or when the
facts causing it were notorious.

(3) The vote of a voter shall not, except in the case
specified in sub section (1) (e), be struck off under subsection
(1) by reason only of the voter not having been or not being
qualified to have the voter‘s name entered on the register of
voters.

Non compliance
with the law. 83. No election shall be declared to be void by reason
of non -compliance with any written law relating to that
election if it appears that the election was conducted in
accordance with the principles laid down in the Constitution
and in that written law or that the non -compliance did not
affect the resu lt of the election.

Costs. 84. An election court shall award the costs of and
incidental to a petition and such costs shall follow the cause .

Determination of
election petition. 85. An election petition under this Act shall be heard
and determined within t he period specified in the Constitution

Certificate of court
as to validity of
election.
86. (1) An election court shall, at the conclusion of the
hearing of an election petition, determine the validity of any

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question raised in the petition, and shall cer tify its
determination to the Commission which shall then notify the
relevant Speaker.

(2) Upon receipt of a certificate under this section, the
relevant Speaker shall give the necessary directions for
altering or confirming the return, and shall issue a ny
notification which may be necessary.

Report of court on
election offences. 87. (1) An election court shall, at the conclusion of the
hearing of a petition, in addition to any other orders, send to
the Director of Public Prosecutions, the Commission and the
relevant Speaker a report in writing indicating whether an
election offence has been committed by any person in
connection with the election, and the names and descriptions
of the persons, if any, who have been proved at the hearing to
have been guilty of an election offence.

(2) Before a person, not being a party to an election
petition or a candidate on whose behalf the seat is claimed by
an election petition, is reported by an election court, the
elections court shall give that person an opportunity to be
heard and to give and call evidence to show why he should
not be reported.

(3) The relevant Speaker shall publish a report made
under this section in the Gazette, and the Commission shall
consider the report and delete from the register of voters, the
name of a person who is disqualified from being registered in
that register of voters.

Referendum Petitions

Election petition
procedures to
apply to
referendum
petition.
88. Unless specifically provided for in this Act, the
procedure applicable to an election petition shall apply to a
referendum petition.

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Referendum
petition. 89. (1) The conduct, result and validity of a referendum
may be challenged by petition to the High Court.

(2) A petition challenging the conduct, result or validity
of a ref erendum shall —

(a) set out the facts relied on to invalidate the
referendum;

(b) identify the specific matter or matters on which the
petitioner relies as justifying the grant of relief;

(c) contain a request for the relief to which the
petitioner claims to be ent itled; and

(d) be filed in the High Court within twenty one days
of the publication of the notice of the results of the
referendum in the Gazette.

(3) A referendum petition may be presented on any of
the following grounds —

(a) in respect of the result of the v oting in all the
constituencies or in any one constituency, that
corrupt practices prevailed at or in relation to the
voting at the referendum in that constituency, or
that there was an error or misconduct, whether by
act or omission, on the part of a refe rendum officer;
or

(b) in respect of the declared result of the referendum,
that there was an error in the counting or tallying of
the votes cast in the referendum.

Composition of
Court. 90. A referendum petition shall be heard and determined
by a bench of thre e judges appointed by the Chief Justice.

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Operation of
declared result
of issue
submitted to
referendum.

91. (1) Where a referendum petition is not presented to
the High Court within the time specified in section 89 (2) (d),
the declared result of refere ndum shall —

(a) have effect from the date on which the result is
gazetted;

(b) be final and not be challenged in any court of law;
and

(c) be conclusive evidence of the voting at the
referendum and of the result of the referendum.

(2) Nothing in this section sha ll be construed as
preventing or delaying the coming into operation of any law
in respect of which a referendum is held pursuant to the
provisions of the Constitution or any other written law if —

(a) it is stated in the declared result of the referendum
that the provisions of the Act are supported by the
votes of a majority of the persons entitled to vote in
the referendum; and

(b) the question raised by any referendum petition or,
if more than one, by all referendum petitions
presented to the High Court in res pect of such
referendum would not, if decided in favour of the
petitioner or petitioners, as the case may be, lead to
a declaration by the Commission that the votes of a
majority of the persons entitled to vote in such
referendum did not support the provis ions of the
said law.

Persons who may
present referendum
petition.

92. (1) A referendum petition may be presented in the
High Court by —

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(a) in the case of a petition in respect of the result of
the voting in a constituency, a person who voted
lawfully or had a right to vote in that constituency
at the referendum;

(b) in the case of a petition in respect of the declared
result of the referendum, a person who voted at the
referendum or had a right to vote at the
referendum; or

(c) in any other case, the Commission.

(2) A petitioner who presents a referendum petition
shall serve all the respondents to the petition within seven
days of filing the petition.

(3) A petitioner shall publish a notice of the petition in
the Gazette and in at least one newspaper of national
circulation, within fourteen days after the petition is filed.

(4) A petition may be served personally upon the
respondent or by advertisement in a newspaper with national
circulation.

Respondents to
referendum
petition.

93. (1) Where, at the hearing of a re ferendum petition, a
person is alleged to have been guilty of a corrupt practice in
relation to the referendum, or where a copy of a referendum
petition is served on a particular person on the direction of the
High Court, the High Court may, on the applica tion of that
person, add or name that person as a respondent to the
petition.

(2) Where, at the trial of a referendum petition
presented by the Commission, a question of law arises in
relation to action or omission by a referendum officer, the
High Court may, on the application of the Attorney -General,
name the referendum officer as a respondent to the petition.

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Filing of
referendum
petition.

94. (1) A referendum petition shall be signed by the
petitioner or by all the petitioners, if more than one.

(2) When ever a referendum petition is presented
under this section, the Registrar of the High Court shall, in
writing, inform the Commission of the filing.

Duty of Registrar
to make list
of referendum
petitions.

95. (1) Subject to the provisions of subsection (2) , the
Registrar of the High Court shall make a list of all the
referendum petitions filed under this Part in the order in
which they are filed, and shall keep in the Registrar‘s office, a
copy of the list which shall be open for inspection by any
person wh o applies to inspect the list.

(2) A referendum petition shall, unless the High Court
orders otherwise, be tried in the order in which it appears on
the list made by the Registrar under subsection (1).

(3) Where more than one petition is presented relati ng to
the same referendum, all such petitions shall be dealt with as
one petition as far as the inquiry into the referendum is
concerned.

Practice
procedure
and security
for costs.

Cap. 21

96. (1) Subject to the provisions of section 98 , the Rules
Commi ttee as constituted under the Civil Procedure Act, may
make rules generally to regulate the practice and procedure of
the High Court with respect to the filing and trial of
referendum petitions, including rules —

(a) specifying —

(i) the time within which any requirement of the
rules is to be complied with;

(ii) the costs of and incidental to the filing and the

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trial of a referendum petition; and

(iii) the fees to be charged in respect of
proceedings of a referendum petition; and

(b) generally with regard to any other matter relating
to a referendum petition as the Chief Justice may
deem necessary.

(2) A petitioner shall deposit one million shillings as
security for costs of a petition presented under this Act, within
ten days of presenting the petition.

(3) Wh ere, a petitioner does not deposit security for
costs as required under this section after presenting of a
referendum petition, the referendum petition shall be struck
out.

(4) The High Court may, make such order as to costs as
it may deem fit and just in respect of any referendum petition
dismissed under this section.

Death of or delay
by petitioner.

97. Where there are two or more petitioners and one or
more of the petitioners dies or die at any time before the final
order of the court hearing the petitio n, the surviving petitioner
or petitioners shall be entitled to continue with the petition.

Hearing of
referendum
petition.

98. (1) A referendum petition shall be —

(a) heard and determined within six months from the
date of presentation of a petition; and

(b) hea rd in open court.

(2) The High Court may, in respect of the trial of a
referendum petition, exercise such powers within its civil
jurisdiction as it may deem appropriate.

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(3) A referendum petition may be withdrawn by the
petitioner on notice to the other parties and the High Court,
subject to any order of the Court as to costs.

Powers of a court
to summon
witnesses in a
referendum
petition.

99. (1) A Court hearing a referendum petition may, at
the hearing of the petition —

(a) order any person who appears to t he court to be
concerned in or affected by the referendum
petition to attend as a witness at such hearing; and

(b) examine any witness or any person who is present
at the hearing even if the witness or person is not
called as a witness by any party to the
pro ceedings:

Provided that after examination by the court, the witness
or person may be cross -examined by or on behalf of the
petitioner or the respondent.

(2) Where a person is ordered to attend as a witness
under subsection (1), the Court may direct that a copy of the
referendum petition be served on that person.

(3) A person who is called as a witness at the trial of a
referendum petition shall not be excused from answering any
question relating to any offence connected with the
referendum on the ground that the answer thereto may
incriminate them or on the ground of privilege.

(4) Notwithstanding subsection (3) —

(a) a witness who answers every question which they
are required to answer under this section to the
satisfaction of the court, and the answers to whi ch
may tend to incriminate them, shall not be liable

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81

to prosecution for any offence committed by them
in connection with the referendum and in respect
of which they are so examined, and shall be
entitled to receive a certificate of indemnity
issued by the Registrar stating that the person is
discharged from liability and shall not be
prosecuted for that offence; and

(b) an answer by a witness to a question before the
Court under this section shall not, except in the
case of any criminal proceedings for giving false
evidence in respect of such evidence, be
admissible as evidence in any civil or criminal
proceedings against them.

(5) Where a person has received a certificate of
indemnity under subsection (3), and legal proceedings are, at
any time, brought again st that person for an offence to which
the certificate relates, the court having cognizance of the case
shall, on proof of the certificate of indemnity, stay such
proceedings.

(6) All reasonable expenses incurred by any person in
attending at or appearin g before the High Court to give
evidence as a witness at the trial of a referendum petition shall
be paid to such person according to the scale of allowances
and expenses appropriate in civil proceedings before the High
Court.

Prohibition of
disclosure o f vote.

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

Examination of
votes.

101. (1) The High Court on its own motion or on an
application by a petitioner may, during the heari ng of a
referendum petition, order for a scrutiny of votes to be carried
out in such manner as the High Court may determine.

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(2) The provisions of section 8 2 shall apply with
respect to scrutiny of votes under this section.

Powers of Court.
102. (1) At the conclusion of the hearing of a referendum
petition challenging the conduct or result of the referendum,
the High Court may —

(a) dismiss the petition;

(b) declare the published result to be incorrect;

(c) declare the referendum to be void; or

(d) uphold the petition i n whole or in part.

(2) Without limiting the generality of this section, the
High Court may exercise its powers to declare a referendum
void on the ground that this Act or the regulations made under
this Act were contravened during the referendum, and suc h
contravention has seriously affected the result of the
referendum.

(3) The Registrar of the High Court shall deliver to the
Commission a certified copy of any decision made by the
High Court under subsection (1).

(4) The Registrar of the High Court sha ll, at the
conclusion of the proceedings in respect of a referendum
petition, submit to the Commission a certificate under the
Registrar‘s hand, stating that the hearing of the referendum
petition has been concluded, and the Commission shall, upon
receipt of such certificate, declare and publish the result of the
referendum in accordance with the findings of the High
Court.

(5) A declaration made by the Commission under

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83

subsection (4) shall be final, shall not be challenged in any
court, and shall be conclusiv e evidence of the voting at the
referendum to which it relates and of the result of such
referendum.

(6) Where the High Court declares a referendum
void, the Commission shall conduct a fresh referendum.

Petition expenses.

103. (1) Subject to the provisions of t his section, all
costs, charges and expenses of and incidental to the
presentation and hearing of a referendum petition shall be
borne in such manner and in such proportions as the High
Court may order, and in particular, any costs which, in the
opinion of the High Court, have been caused by any
vexatious conduct or by any frivolous or vexatious allegations
or objections on the part of the petitioner or of the respondent,
may be ordered to be paid by the party by whom such costs
have been caused.

(2) Wher e in the hearing of a referendum petition a
person appears to the High Court to have been guilty of any
corrupt practice relating to the referendum, the High Court
may, after giving that person an opportunity to make a
statement to show why the order shoul d not be made, order
the whole or a portion of the costs of or incidental to the trial
of the referendum petition to be paid by that person to such
person or persons as the High Court may determine.

(3) Money deposited as security shall, when no longer
ne eded as security for costs, be returned to the person in
whose name it is deposited or to any person entitled to receive
the money by order of the High Court, which may be made
upon motion after notice and proof that all just claims have
been satisfied or otherwise sufficiently provided for as the
High Court may require.

Certification of
referendum. 104. In any prosecution for an offence under this Act

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84

alleged to have been committed at or in connection with a
referendum in any constituency, the certificate of the
returning officer for that constituency stating that the
referendum mentioned therein was being or had been held
shall be sufficient evidence of the fact that the referendum
was being or had been held in that constituency.

PART VIII — GENERAL PROVI SIONS

Duty to co -operate.

105. (1) It shall be the duty of every public officer and
public or private entity to co -operate with the Commission in
its activities during an election and not to hinder the
Commission in carrying out its functions.

(2) It shall be the duty of police officers in their
respective areas of operation, to take all necessary measures
for the maintenance of law and order and stability necessary
for the conduct of an election and to protect and uphold the
rights of all persons under any written law relating to
elections.
(3) Notwithstanding the provisions of the law relating to
the National Police Service or any other written law, a police
officer assigned duties during the conduct of an election or
referendum shall be deemed t o be an elections officer for
purposes of this Act and subject to direction and instruction
of the Commission.
(4) It shall be the duty of –
(a) all officers of the county administration, in their
respective administrative units;
(b) all persons in charge of local authority facilities;
(c) persons in charge of facilities;

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85

(d) all political parties and members of the public;
(e) all persons in charge of public utilities including
teachers in charge of public schools;
(f) the Registrar of Persons; and
(g) the Registrar of Po litical Parties,
to give the Commission and its officers the support and
collaboration necessary for the Commission to execute the
activities relating to the conduct of an election.

General penalty . 106. (1) A person who contravenes a provision in this
Act for which a penalty has not been provided for, commits
an offence and is liable, on conviction, to a fine not exceeding
one million shillings or to imprisonment for a term not
exceeding three years or to both.

(2) An offence under this Act relating to an election
shall, with necessary modifications, be an offence during a
referendum.

(3) A person who is convicted of an offence under this
Act shall not be eligible for election or nomination in an
election under this Act for a period of five years followin g the
date of conviction.

Powers of arrest
and prosecution. 107. (1) A member of the Commission or any officer
designated by the Commission may order the arrest of a
person who commits an offence under this Act.

(2) The Commission shall have the power to p rosecute
any offences under this Act and impose sanctions against a
person who commits an offence under this Act pending the
hearing and determination of the offence.

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(3) A member of the Commission or any person
designated by the Commission shall have the power to
impound or to order the impounding of any state resources
that are used in an election campaign.

Airtime by state
radio and
television for
election campaign.
108. All candidates and political parties participating in
an election shall be allocated reasonable airtime on state radio
and television broadcasting services during the campaign
period.

Regulations.

109. (1) The Commission may make regulations
generally for the better carrying out of the purposes and
provisions of this Act, and in particular , but without prejudice
to the generality of the foregoing, may make regulations to —

(a) prescribe the manner in which registers of voters
shall be compiled and the manner in which they
shall be revised;

(b) prescribe the procedure for registration and
issuanc e of voters cards and provide for the
progressive registration of Kenyan citizens living
abroad;

(c) to provide for the regulation of the process by
which parties nominate candidates for elections;

(d) to provide for the manner of nomination ,
allocation and re -allocation of special seats and
mechanisms for resolving disputes arising out of
such nomination, allocation and re -allocation;

(e) prescribe the procedure for making and
determining claims to be registered and
objections to registration;

(f) authorise any regi stration officer to consider or

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determine any application, claim, objection or
appeal, to summon any person to appear before
them and give evidence on oath, and to
administer an oath for that purpose and to order
the production of any document relevant to any
issue which the officer is required to consider and
determine;

(g) provide for the division of constituencies into
units for the purpose of the registration of voters;

(h) prescribe the conditions under which elections
may be held in accordance with the prov isions of
the Constitution, this Act or any other written law
relating to elections;

(i) prescribe the amount of the deposit to be paid by
or on behalf of candidates at all elections and the
circumstances in which the deposit may be
forfeited;

(j) provide for t he appointment of officers to preside
at polling stations;

(k) prescribe the facilities to be provided at polling
stations and the persons who may be admitted to
polling stations;

(l) prescribe the place and manner in which votes
may be cast and the construction and scaling of
ballot boxes and provide for the issue a ballot
papers to voters;

(m) provide for the manner in which, and the
person by whom any question as to the identity of
any person claiming the right to vote shall be
determined;

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(n) provide for the mann er in which a voter who is
not able to read or write may vote or be assisted
in voting;

(o) provide for the manner in which a voter with
special needs including a person with a disability
may vote or be assisted in voting;

(p) prescribe the procedure to be fol lowed in the
counting of votes and the circumstances in which
votes may be rejected by a returning officers as
being invalid;

(q) prescribe conditions for the use of private motor
vehicles, vessels or buildings at elections;

(r) prescribe the facilities to be pr ovided during the
electoral process and in particular, for voting by
electronic machines and the persons entitled so to
vote and the circumstances in which persons may
so vote;

(s) provide for the allocation by the Commission, in
a just and equitable manner o f the use of state
owned radio and television broadcasting services
during any election period;

(t) prescribe the procedure to be adopted by the
public in making representations for the alteration
of electoral area boundaries;

(u) prescribe the forms which may b e used under this
Act and the fees in respect of anything to be done
under this Act;

(v) prescribe the procedure for advance voting for

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special categories including patients admitted in
hospital, pastoralists, armed forces, elections
officers and other citize ns of Kenya providing
essential services;

(w) prescribe the procedure for voting for citizens
residing outside Kenya;

(x) provide for complaints resolution mechanisms
and for the manner of settlement of electoral
disputes .

(y) provide for the conduct of election o bservers, the
media, monitors and evaluators and organisations
carrying out civic and voter education;

(z) provide with reasonable grounds for the
postponement of elections;

(aa) provide for mechanisms for carrying out effective
voter education;

(bb) provide for the mode of declaration of the result
of an election;

(cc) prescribe the manner of enforcing the Electoral
Code of Conduct; or

(dd) provide for the conduct of campaigns during a
referendum or an election;

(ee) provide for the financing of campaigns during a
referendum or an election;

(ff) prescribe anything which is required to be

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prescribed or is necessary or desirable for the
better giving effect to this Act.

(2) The power to make regulations conferred on the
Commission under this Act shall be —

(a) for the purpose and objectiv e of giving effect to
the Constitution and this Act;
(b) limited to the nature and scope specifically
stipulated in the Constitution and this Act; and
(c) based on the general principles and standards
contained in the Constitution and this Act.

(3) The power to m ake regulations shall be exercised
only after a draft of the proposed regulations has been
approved by the National Assembly, at least six months
preceding a general election.

Electoral
code of conduct.

110. (1) Every political party and every person who
participates in an election or referendum under the
Constitution and this Act shall subscribe to and observe the
Electoral Code of Conduct set out in the Second Schedule in
such manner as the Comm ission may, subject to paragraph 6
of that Schedule, determine.

(2) A political party that is eligible to nominate
candidates under the Constitution, this Act or any other
written law shall not be eligible to contest in any election
unless the political p arty and the candidate have subscribed to
the Electoral Code of Conduct referred to in subsection (1).

(3) Every officer of a political party or a referendum
committee which, and every nominated candidate who,
attempts to participate in or participates in an election or
referendum without subscribing to the Electoral Code of

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Cap. 75

Conduct commits an offence and is liable on conviction to a
fine not exceeding one million shillings or to imprisonment
for a term not exceeding six years or to both.

(4) Any person who c ontravenes the Electoral Code
of Conduct commits an offence.

(5) The trial of an offence under this section shall be
without prejudice to any proceedings in or consequent upon a
petition.

(6) Subject to the provisions of the Criminal
Procedure Code, the Commis sion may designate any of its
officers to conduct any prosecution for an offence under this
Act and the Electoral Code of Conduct, and such officer shall,
for that purpose, have all the powers conferred upon a public
prosecutor by the Constitution and the Criminal Procedure
Code.

Repeals. Cap. 7
Cap 66.

111. The National Assembly and Presidential Elections
Act and the Election Offences Act are repealed.

Transitional
provisions. 112. Notwithstanding the prov isions of this Act —

(a) the register of voters prepared under the National
Assembly and Presidential Elections Act shall be
deemed to have been prepared under this Act;

(b) a voter‘s cards issued under the National
Assembly and Presidential Elections Act shall be
deemed to have been issued under this Act;

(c) an election official holding office immediately
before the commencement of this Act shall be
deemed to have been appointed in accordance

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with the provisions of this Act; and

(d) an election petition filed under the National
Assembly and Presidential Elections Act shall be
deemed to have been filed under this Act .

FIRST SCHEDULE (S. 22(2) )

ELECTION OF SPEAKER OF COUNTY ASSEMBLY

1. A speaker of a county assembly shall be elected wh en the county
assembly first meets after a general election and before the county
assembly proceeds with the dispatch of any other business.

2. If the office of speaker falls vacant at any time before the dissolution of
the county assembly, another memb er of the assembly shall be elected to
preside over the transaction of business until after the election of a new
speaker.

3. The clerk of the county assembly shall preside over the election under
paragraph (2).

4. The names of candidates for election to the office of speaker shall be
entered upon nomination papers obtained from and handed to the clerk, at
least forty -eight hours before the time appointed at which the county
assembly is to meet to elect a speaker, and shall be accompanied in each
case, by signatures of two members who support the candidate and a
declaration by them that the candidate is willing to serve and that the
candidate is qualified to be elected as a member of the county assembly
under this Act.

5. The clerk shall maintain a reg ister in which shall be shown the date and
time when each candidate‘s nomination papers were received and shall

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ascertain that every such candidate for election to the office of speaker is
qualified to be elected as such under this Act.

6. The election of the speaker shall be by secret ballot.

7. The clerk shall prepare, at least one hour before the meeting of the county
assembly, ballot papers upon which shall be shown the names of all
candidates validly nominated under paragraph (5) and shall issue n ot more
than one such paper to each member who comes to the table to obtain it.

8. The clerk shall, at the commencement of each ballot, cause the ballot box,
empty and unlocked, to be displayed to the county assembly and shall, in
the presence of the coun ty assembly, lock the box, which shall thereafter
be kept in the full view of the county assembly until the conclusion of the
ballot.

9. Each member of the county assembly who wishes to vote shall proceed to
a booth or designated area provided by the c lerk for that purpose and
located next to and within reasonable distance of the ballot box and shall,
whilst therein, mark the ballot paper by placing a mark in the space
opposite the name of the candidate for whom the member wishes to vote,
fold the marke d ballot paper before leaving the booth or area and place
the folded ballot paper in the ballot box:

Provided that a member who, before the conclusion of a ballot has
marked a paper in error may, by returning it to the clerk, obtain another in
its place a nd the clerk shall immediately cancel and destroy the paper so
returned.

10. The clerk shall make such arrangements as may be necessary to enable
any member with disability to vote.

11. When it appears to the clerk that all members who are present and wh o
wish to vote have placed their ballot papers in the ballot box, the clerk
shall unlock the box, examine the ballot papers and, having rejected those
unmarked or spoilt, report the result of the ballot; and no member who

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has not already recorded his or he r vote shall be entitled to do so after the
clerk has unlocked the ballot box.

12. A person shall not be elected as speaker of a county assembly, unless
supported by votes of two -thirds of all the members of the county
assembly and if no candidate is supp orted by the votes of two -thirds of all
the members, the candidate who in that ballot receives the highest
number of votes and the candidate who in the ballot receives the next
highest number shall alone stand for election in a further ballot and the
candi date who receives the highest number of votes on the further ballot
shall be elected speaker.

13. A candidate may, by written notice to the clerk, withdraw his or her name
before a ballot is started, and in the event of such withdrawal, the clerk
shall cr oss the name of that candidate off any ballot papers issued for that
or any subsequent ballot.

14. Notwithstanding anything to the contrary in this schedule, if there is only
one candidate who has been duly nominated, that candidate shall be
declared fort hwith to have been elected speaker, without any ballot or
minimum vote being required.

SECOND SCHEDULE (S. 51(6) , 1 10(1) )

ELECTORAL CODE OF CONDUCT

(1) This Code shall be subscribed to by —

(a) every political party participating in th e election of a president,
a member of Parliament, a county governor, a member of a
county assembly;

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(b) every candidate; and

(c) every leader, chief agent, agent or official of a referendum
committee.

(2) This Code shall, in so far as it is applicable, bind the G overnment and
every political party, leader, office bearer, agent and member of a
political party or a person who supports a political party, and every
candidate nominated under the electoral laws for any election.

(3) All registered political parties and ref erendum committees shall execute
this Code through the hand of their respective registered officials to
signify their acceptance to be bound by the provisions of this Code and
their commitment to strive to ensure that their members and any person
who suppo rts the political party abide by the code at all stages of
elections and referendum.

2. In this Code, unless the context otherwise requires –

―Committee‖ means the Electoral Code of Conduct Enforcement
Committee;

―electoral area‖ means a ward, county or constituency;

―election court‖ means the Supreme Court in exercise of the
jurisdiction conferred upon it by Article 163 (3) (a), the High Court in the
exercise of the jurisdiction conferred upon it by Article 165 (3) (a) of the
Constitution, or the High Court in the exercise of the jurisdiction
conferred upon it by this Act

‗electoral laws‘ means the Constitution, the Elections Act and
subsidiary legislation made thereunder as they relate to the presidential,
parliamentary, county elections and the re ferendum.

3. The object of this Code is to promote conditions conducive to the conduct
of free and fair elections and a climate of tolerance in which political
activity may take place without fear, coercion, intimidation or reprisals.

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4. All registered politic al parties and other persons bound by this Code shall
endeavour to promote the object of the code to enable free political
campaigning and open public debate to take place in all parts of Kenya
during an election period.

5. Registered political parties, refe rendum committees, officials of political
parties and referendum committees and candidates do, by subscribing to
this Code, further commit themselves to —

(a) adhere to the values and principles of the Constitution;

(b) give wide publicity to this Code;

(c) promote voter education campaigns;

(d) condemn, avoid and take steps to prevent violence and
intimidation;

(e) instruct their candidates, office -bearers, agents, members and
persons who support the political party of their obligations under
this Code;

(f) promote gender eq uality;

(g) promote ethnic tolerance;

(h) promote cultural diversity;

(i) promote the fair representation of special interest groups;

(j) generally affirm the rights of all participants in an election to –

(i) express divergent political opinions;

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(ii) debate and contest the policies and programmes of other
parties;
(iii) canvass freely for membership and support from voters;
(iv) subject to the Public Order Act hold public meetings;
(v) attend public meetings convened by others;
(vi) distribute non -offensive electoral literature and campaign
ma terials;
(vii) publish and distribute non -offensive notices and
advertisements;
(viii) erect non -offensive banners, placards and posters;
(ix) remove all banners, placards and posters erected during the
election period;
(x) promote free electoral campaigns by all lawful means; and
(xi) co -operate with the Commission and the relevant
Government agencies and other authorities in the
investigation of issues and allegations arising during the
election period.

6. All those bound by this Code shall, throughout an election period –

(a) publicly and repeatedly condemn violence and intimidation and
avoid the use of hate speech, language or any kind of action which
may lead to violence or intimidation, whether to demonstrate party
strength, gain any kind of advantage, or for any other reason;

(b) refr ain from any action involving violence or intimidation;

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(c) ensure that no arms or weapons of any kind are carried or displayed
at political meetings or any march, demonstration or other event of a
political nature;

(d) refrain from campaigning in places of wors hip or during burial
ceremonies;

(e) co -operate and liaise in good faith with other parties to avoid
organizing public meetings, demonstrations, rallies or marches to
take place at the same time and venue as similar political events
organized by other parties ;

(f) do nothing to impede the right of any party, through its candidates,
canvassers and representatives, to have reasonable access to voters
for the purposes of conducting voter education, fund raising,
canvassing membership and soliciting support;

(g) avoid plagiarizing the symbols, colours or acronyms of other parties;
and to discourage and, if possible, prevent the removal,
disfigurement or destruction of political campaign materials of any
party;

(h) refrain from offering any document or reward to any person in
consideration of such person either joining or not joining any party;
attending or not attending any political event; voting or not voting
(either at all, or in any particular manner); or accepting, refusing or
withdrawing such person’s nomination as a candidate in the election;

(i) refrain from any attempt to abuse a position of power, privilege or
influence, including parental, patriarchal, state or traditional
authority for political purposes including any offer of reward or
threat of penalty;

(j) avoid any discrimination based on race, sex, pregnancy, marital
status, health status, ethnic or social origin, colour, age, disability,
religion, conscience, belief, culture, dress, language or birth in
connection with the election and political activity;

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99

(k) in rela tion to the Commission —

(i) acknowledge the authority of the Commission in the
conduct of the election or referendum;
(ii) ensure the attendance and participation of representatives
at meetings of any party liaison committee and other
forums convened by or on behalf of the Commission;
(iii) implement the orders and directions of the Commission;
(iv) facilitate the Commissions right of access through official
observers and other representatives to all public political
meetings or other electoral activities;
(v) co -operate in t he official investigation of issues and
allegations arising during an election period;
(vi) take all reasonable steps to ensure the safety of observers
and other representatives of the Commission from
exposure to insult, hazard or threat in the course of their
official duties;
(vii) to establish and maintain effective lines of
communication with the Commission; and
(viii) to abide by the provisions of this Code;

(l) reassure voters with regard to the impartiality of the Commission
and the secrecy and integrity of the ballot, a nd to reaffirm that no
one should know how any other person has voted;

(m) take reasonable steps to discipline and restrain their party office –
bearers, employees, candidates, members and persons who support
the political party who –

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(i) infringe this Code;

(ii) engage in activities of commission or omission which
constitute offences under the electoral laws or otherwise fail
to observe this Code; and

(iii) contravene or fail to comply with any provision of the electoral
laws;

(n) agree for party office bearers, employe es, candidates members and
persons who support the political party to submit to the disciplinary
procedures of the Commission for any violation of this Code; and

(o) without prejudice to the right to present a petition to an election
court, accept the final o utcome of the election and the Commission‘s
declaration and certification of the results thereof.

7. Where, in the opinion of the Commission, any political party or
referendum committee participating in any election or referendum or the
leader, office -bearer or member of a political party or person who supports
the political party or referendum committee or any candidate at any
election, in any way infringes any provision of this Code, the Commission
may —

(a) in the case of a political party and, subject to sub -paragraph (b),
and in the case of the leader, any office -bearer or member of a
political party or person who supports the political party
referendum committee or candidate, impose upon that political
party one or more of the following penalties or sanctio ns which
any or all may be suspended on specific conditions —

(i) a formal warning;

(ii) a fine determined by the Commission;

(iii) notwithstanding the provisions of any other written law,
an order prohibiting the political par ty, whether

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permanently or for a specified period, from utilizing
any public media time, through the television or radio
broadcasting service of such media as have been or may
be allocated to the political party for electoral purposes;

(vi) an order prohibitin g the political party, referendum
committee or candidate from —

(aa) holding particular public meetings,
demonstrations or marches, or any kind of
meeting, demonstration or march;
(bb) entering any specified electoral area for
purposes of canvassing for membership, or for
any other electoral purpose;
(cc) erecting placards or banners, or from publishing
and distributing campaign literature;
(dd) publishing or distributing campaign literature
and electoral advertising or limiting the rights of
the political party to do so, and such prohibition
or limitation shall be notified to the relevant
regulating officers under the Public Order Act in
the affected places or electoral areas for
purposes of the Act;
(ee) in the case of the leader, candidate, an office –
bearer or member of a politic al party or person
who supports the political party or referendum
committees impose any one or more of the
penalties or sanctions referred to in sub –
paragraph (a) (i) or (ii) of this paragraph;
(b) Where a political party, referendum committee, leader or any
office bearer, member or person who supports the political party,
referendum committee or any candidate at an election fails,
neglects or refuses to comply with the orders of the Commission

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issued under paragraph 7 (a), the Commission shall impose upon
the defaulting party any of the following sanctions which may be
suspended on specific conditions —

(i) in case of fine imposed, prohibit the defaulting party
from participating in ongoing and future elections as
candidates in case of a defaulting candidate or pr ohibit
the political party or the referendum committee
official from participating in ongoing elections and
referendum, and future elections or referendum or any
activity facilitated by the Commission until such fine
has been paid;

(ii) in case of failure to c omply with any other sanctions
imposed, cancel the right of such political party or
candidate to participate in the next election; and

(iii) file execution proceedings in the High Court to
enforce the recovery of the fine.

8. A fine imposed by the Commission unde r this Code shall be registered in
the High Court.

9. Without prejudice to the provisions of paragraph 7, the Commission may
either of its own motion or in consequence of any report made to it,
institute proceedings in the High Court as may be appropriate in the case
of any alleged infringement of this Code by a political party or by the
leader, any office -bearer or member of a political party or person who
supports a political party or any candidate and where the Court finds the
infringement of the provision s of this Code –

(a) in the case of a political party, any act or omission involving
violence, intimidation or a gross or systematic violation of the rights
of any political party, candidate or voter, the Court may, in addition
to or in substitution for any ot her penalty or sanction specified in
paragraph 7(a), make an order cancelling the right of such party to
participate in the election concerned; or

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(b) in the case of the leader, any office -bearer or member of a political
party or person who supports the poli tical party or of any candidate,
that any act or omission involving violence or intimidation or gross
or systematic violation of the rights of any political party candidate
or voter, the Court may in addition to or in substitution of any other
penalty or s anction specified in paragraph 7(a) (i) and (ii), make an
order disqualifying, in the case of a person who is a candidate, that
person from being a candidate or deleting the name of that
candidate from the list or lists of candidates concerned.

10. In making its decision regarding appropriate penalties or sanctions, the
Commission or, as the case may be, the High Court shall have regard to
any other legal consequences that may result from civil or criminal
proceedings instituted by reason of the same occurrenc e.

11. The High Court shall ensure that any proceedings initiated under
paragraph 9 are dealt with in priority to all other matters brought before it,
and that the decision of that Court is given before the date of the election
concerned.

12. The procedure of th e High Court in cases falling within the provisions of
this Code shall, without prejudice to paragraph 9, be in accordance with
such Rules of Procedure as shall from time to time be promulgated by the
Chief Justice.

13. Every registered political party, refer endum committee, candidate and
agent−

(a) shall respect the role of the media before, during and after an
election or referendum conducted under this Act;

(b) may not prevent access by members of the media to public political
meetings, marches, demonstrations an d rallies; and

(c) shall take all reasonable steps to ensure that journalists are not
subjected to harassment, intimidation, hazard, threat or physical

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assault by any of their representatives or persons who supports the
candidate or political party.

14. Every m edia house and its representative s hall−

(a) adhere to the media professional ethics in its coverage of public
meetings, campaign rallies and demonstrations;

(b) during the prescribed hours of polling, not publish or distribute the
result of an exit poll taken in that election or referendum;

(c) adh ere to any media regulations issued by the Commission; and

(d) abide by the provisions of this Act.

15. (1) The Commission shall set up the Electoral Code of Conduct
Enforcement Committee which shall comprise of not less than five
members of the Commission and shall be chaired by a member appointed
by the Chairperson; the Commission may nominate a member of its staff
to be the secretary to the Committee.

(2) The Chairperson of the committee shall be a person who is qualified to
hold the office of Judge of the H igh Court.

(3) Every candidate, official and agent shall−

(a) acknowledge the authority of the Committee to enforce the
provisions of this Code on behalf of the Commission;
(b) ensure compliance with summons issued to the party, its candidates
or representatives by the Committee;
(c) cooperate in the official investigation of issues and allegations
arising at election period; and
(d) respect and comply with the orders issued by the Committee.

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(4) The Committee shall issue summons to the person, political party or
refere ndum committee against whom a complaint has been received as
having infringed the provisions of this Code and any other person who
the Commission has reason to believe to have infringed the provisions
of this Code to attend its meetings. The meetings will be convened at
any place which the Committee may deem fit.

(5) In its proceedings, the Committee may examine the person summoned
and may allow a person to have legal representation.

(6) The committee shall not be bound by the provisions of the Criminal
Procedure Code or the Evidence Act in its proceedings.

(7) Every person who is summoned by the Committee and who attends the
meetings of the Committee shall be accorded the right to be heard.

(8) The Committee shall exercise the powers provided under this Code to
punish any person found to have infringed this Code.

(9) The Committee shall deliver its verdict expeditiously and inform the
parties of the decision.

(10) Notwithstanding the provisions of this Code, any complaint submitted
in writing alleging any irregularity with any establishment of the
electoral process at any stage if not satisfactorily resolved by the peace
committee shall be examined and determined by the Committee.

16. Every registered political party referendum committee, candidate and
age nt shall−

(a) ensure security and full participation of women and persons with
disabilities as candidates and voters;
(b) respect the right of women to communicate freely with political
parties, committees and candidates;

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(c) facilitate the full and equal participati on of women in political
activities;
(d) ensure free access of women and persons with disabilities to all
public political meetings, marches, demonstrations, rallies and
other public political events; and
(e) take reasonable steps to ensure that women are free to engage in
any political activity.
17. (1) The Commission may establish peace committees in every
constituency during an election and referendum period.

(2) Every political party, referendum committee, candidate,
official and agent shall−

(a) acknowledge the activity of peace committee established at the
constituency level by the Commission;

(b) ensure attendance of the peace committee meetings convened at
the c onstituency level on behalf of the Commission; and

(c) cooperate in the official investigation initiated by the peace
committee on issues and allegation arising at the election period.

(3) The peace committee shall have power to−

(a) reconcile warring parties;

(b) med iate political disputes in the constituencies;

(c) liaise with government security agencies in the constituency and
report suspected election malpractices; and

(d) report any violation of this Code to the Committee for appropriate
action.

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18. This Code shall take e ffect from the date of dissolution of parliament until
polling day.

19. Any person may complain about the breach of this Code.

THIRD SCHEDULE (s. 6 0(1) )

OATH OF SECRECY

I………………………………………………………..I.D./Passport No.
………… ……………………. swear that I will not at this election for
the…………………………………………………………………………….constitu
ency/county/ ward do anything forbidden under Part VI of the Elections
Act which has been read to me.

………………………… ………………………………
Signature of person taking the oath

Before me

………………………………………………………………………………

(Signature)
Magistrate/Commissioner for Oaths

Date…………………………………………

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108

___________________

I certif y that this printed impression is a true copy of the
Bill passed by the National Assembly on the 26 th August, 2011.

Clerk of the National Assembly.

Presented for assent in accordance with the provisions of
the Constitution on the ………………………………………….., at the hour
of ……………………………………………..

Attorney -General .

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