According to Election Act Regulation 71, spoilt ballot is not a vote at all and does not count towards turnout. A spoilt ballot never enters the ballot box. This is different from a stray ballot which the Commission defines as a paper cast in the wrong ballot box
Rejected ballot papers
In the 2017 presidential election petition, the Supreme Court held that rejected votes should not be included in the final computation of presidential election winners.
A rejected vote is a vote which is void, a vote that accords no advantage to any candidate; it cannot be used in the computation of determining the threshold of 50%+1.
IEBC states that the Presiding Officer may reject any ballot paper, which for example, is not an official ballot paper, that is, it bears a serial number which differs from those on the ballot papers in that polling station and the relevant counterfoil – is of a different size than the official IEBC ballot papers.
The Supreme Court ruled that spoilt ballot papers are those that are not placed in the ballot box, but are cancelled and replaced where necessary by the Presiding Officer at the polling station.
It differs from the rejected votes, which although placed in the ballot box, are subsequently declared invalid on account of certain factors such as fraud.
Disputed Vote
A disputed vote according to Election Act is one that the Presiding Officer considers valid but a candidate or an election agent questions. The ballot will be taken into consideration for counting. The Returning Officer at the tallying centre can deal with these disputes.
According to Mwidau, IEBC is mandated to assist voters who are not well informed with its rules on the ballot to ensure every Kenyan fully exercises their democratic right.
“On the application of a voter who is, by reason of a disability or being unable to read or write, and therefore unable to vote in the manner prescribed in these regulations, the presiding officer shall permit the voter to be assisted or supported marking a tick or a cross does not mean a rejected vote but valid, it would though be considered invalid when a mark crosses the marked square on the ballot,” added Mwidau.
In 2017, total votes cast were 15,593,050 out of which 411 510 were considered spoiled. In the preceding election in 2013, a total of 12,221,053 out of which 108,975 were considered spoiled.
Kenya’s two main contenders, Raila Odinga of Azimio La Umoja and Deputy President William Ruto of Kenya Kwanza concluded their official campaign on Saturday August 6, rallying their supporters to come out in large numbers and vote in their favour.
