Judge Explains Supreme Court's Constitutional Role in Presidential Election Disputes
By Stephen Mbobu
The University’s Faculty of Law, on Tuesday, September 15, 2026 hosted Justice William Ouko, for one the Supreme Court Lecturer Circuit series targeting Law Schools in Kenya.
Justice William Ouko examined the Court’s mandate during a lecture titled “The Constitutional Architecture of Presidential Election Dispute Resolution in Kenya.” This lecture marked the inaugural session of the Supreme Court Lecture Circuit Series 2026, an educational outreach initiative by the Court.
Speaking at the forum while welcoming the Judge, our Vice Chancellor/Rector, Very Rev. Prof. Elias Opongo, SJ noted that the lecture was especially close to his own academic and professional interests; transitional justice, peacebuilding and the development of institutions capable of managing political conflict without allowing societies to descend into violence.
The VC further noted that Kenya’s history is a reminder of the terrible consequences that can follow when political grievances are not addressed through trusted institutions.
“This talk reminds us that courts are not peripheral actors in peacebuilding. By providing an authoritative forum in which evidence can be examined, grievances heard and decisions explained publicly, the Judiciary helps transform potentially violent political confrontation into constitutional dialogue. Electoral justice is, therefore, part of the architecture of peace.” Prof. Opongo further added.
Prof. Elias Opongo, SJ underscored the fact that as Kenya moves steadily towards the 2027 General Election, the conversation on electoral justice was both timely and necessary.
“Our citizens are increasingly conscious of their constitutional rights and increasingly willing to challenge public decisions. This is an important democratic development. However, litigation must also contribute to constitutional clarity, institutional accountability and public confidence. The law must provide not only procedures for declaring a winner, but also credible pathways through which those who dispute an outcome can be heard and the country can move forward peacefully.”
Justice Ouko traced the origins of the Supreme Court’s exclusive jurisdiction over presidential election petitions to Kenya’s turbulent electoral history, including the contested elections of the 1990s and the violence that followed the 2007 polls.
He recalled the 1997 petition challenging the election of President Daniel arap Moi, which was dismissed on the technical ground of failure to effect personal service. Justice Ouko said the experience demonstrated the consequences of having electoral disputes resolved through institutions perceived as lacking credibility, independence, impartiality or the capacity to deliver timely justice.
“The experience demonstrated the profound consequences that may arise where disputes concerning the exercise of political power cannot be resolved through institutions perceived to be credible, independent, impartial and capable of delivering timely justice,” he noted.
A Constitutional Design for Finality
Justice Ouko explained that the 2010 Constitution deliberately established the Supreme Court as Kenya’s apex court and granted it exclusive original jurisdiction over presidential election petitions under Article 163(3)(a).
He said the arrangement was designed not merely as a matter of judicial hierarchy, but as part of a broader constitutional effort to strengthen public confidence in the Judiciary and protect the legitimacy of the presidency.
“Challenges to the presidential election require a forum possessing both constitutional authority and institutional finality,” he said.
The judge also highlighted Kenya’s strict constitutional timelines for presidential election petitions. A petition must be filed within seven days of the declaration of presidential election results, while the Supreme Court is required to determine the petition within 14 days. He noted that Kenyans should reconsider these timelines in future amendments of the constitution.
Justice Ouko said the compressed timelines are intended to provide certainty and prevent prolonged disputes over the presidency. However, he cautioned that speed should not compromise fairness or due process.
“Expedition must not be conflated with haste,” he cautioned.
Evidence and the Standard of Proof
Turning to evidentiary principles, Justice Ouko explained that although the legal burden of proof rests on the petitioner, the evidential burden may shift depending on the strength of the evidence presented.
He referred to the Supreme Court’s jurisprudence in Raila 2013 and Raila 2017, which established an intermediate standard of proof for presidential election petitions—higher than the ordinary civil standard but below the criminal standard of proof beyond reasonable doubt.