Point in Time
Act No: No. 24 of 2011
Act Title: ELECTIONS
[ Date of commencement: 2nd December, 2011. ]
[ Date of assent: 27th August, 2011. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Elections Act, 2011.

PART II – REGISTRATION OF VOTERS AND DETERMINATION OF QUESTIONS CONCERNING REGISTRATION
3.
Right to vote
(1)

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

(2)

A citizen shall exercise the right to vote if the citizen is registered in the Register of Voters.

[Act No. 36 of 2016, s. 26.]

4.
Register of Voters
(1)

There shall be a register to be known as the 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 register in respect of every constituency;

(d)

a county register in respect of every county; and

(e)

a register of voters residing outside Kenya.

(2)

The Commission shall compile and maintain the Register of Voters referred to in subsection (1).

(3)

The Register of Voters shall contain such information as shall be prescribed by the Commission.

[Act No. 36 of 2016, s. 26.]

7.
Transfer of registration
(1)

Where a voter wishes to transfer the voter’s registration to an electoral 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 constituency not later than sixty days preceding the election.

8.
Updating of the Register of Voters
(1)

The Commission shall maintain an updated Register of Voters.

(2)

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

(a)

regularly revise the Register of Voters;

(b)

update the 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 Commission 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

(e)

revise the Register of Voters whenever county boundaries are altered in accordance with Article 94(3) of the Constitution.

[Act No. 36 of 2016, s. 26.]

9.
Postponement of disqualification to enable appeal

Where a person has been adjudged or declared to be of unsound mind, 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 from being so registered until the 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 to appeal against the decision.

Determination of Questions Concerning Registration
11.
Determination of questions as to registration

Any question whether a person is qualified to be registered as a voter shall be determined in accordance with this Part.

12.
Claims
(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 Principal Magistrates Court on matters of fact and law and to the High Court on matters of law.

PART III – ELECTIONS
Presidential Elections
14.
Initiation of presidential election
(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 media of national circulation—

(a)

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

(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 poll shall be taken for the presidential election, which shall not be less than twenty-one days after the day specified for nomination.

15.
Change of deputy president nominee candidate
(1)

A presidential candidate or a political party shall not at any time 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 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
County Governor Elections
17.
Initiation of county governor election
(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 least 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 nomination of candidates 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.

18.
Change of deputy county governor nominee candidate

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 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 before the date of presentation of nomination papers to the Commission.

County Assembly Elections
19.
Initiation of county assembly elections
(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 electronic 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 referred 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 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 the notice to the relevant returning officer.

20.
Notification in electronic media

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

21.
Election of county assembly speaker
(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 members.

(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 deputy speaker of a county assembly shall be elected from among persons who are members of that county assembly.

(4)

The First Schedule shall, with necessary modifications, apply to the election of the deputy speaker after the first election under the Constitution.

(5)

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 office holder resigns from office in a letter addressed to the county assembly;

(e)

where the office holder violates the Constitution;

(f)

in the case of gross misconduct on the part of the office holder;

(g)

where the office holder is incapable, owing to physical or mental infirmity, to perform the functions of the office;

(h)

where the office holder is bankrupt;

(i)

where the office holder is sentenced to a term of imprisonment of six months or more; or

(j)

if the officer holder dies.

Nominations and Elections Generally
23.
Qualifications and disqualifications for nomination as President
(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 independent 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 public officer, or is acting in any State or other public office.

(3)

Subsection (2)(b) shall not apply to—

(a)

the President;

(b)

the Deputy President; or

(c)

a member of Parliament.

24.
Qualifications and disqualifications for nomination as member of Parliament
(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 Act; 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, at 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 ten years immediately preceding the date of election;

(d)

is a member of a county assembly;

(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 exhausted.

25.
Qualifications for nomination as member of county assembly
(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 least five hundred registered voters in the ward concerned.
(2)

A person is disqualified 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 member 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 found, 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 relevant sentence or decision has been exhausted.

26.
Additional disqualification
(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 election period, in any other case, shall be disqualified from contesting in the election held during that election year or 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.

Nomination of Party Lists Members
37.
Re-allocation of special seat
(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 the 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.

42.
Accreditation of observers, agents, reporters, etc.

The Commission may at any election accredit—

(a)

person as an observer, agent or media representative; or

(b)

any person or institution to report on an election.

PART IV – RECALL OF MEMBER OF PARLIAMENT
45.
Right of recall
(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— [This section was declared Unconstitutional by Constitutional Petition No. 209 of 2016]

(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.