Balancing the Scales of Electoral Justice
hold the view that not every claim of misconduct in an election or plea in a
petition warrants scrutiny. Rule 33(2) of the Election Petition Rules which sets
out the broad criteria upon which an order of scrutiny can be granted on a
party’s application, 125 makes it clear that granting an order for scrutiny is at
the discretion of the court upon being “satisfied that there is sufficient reason”
for granting it. The party seeking scrutiny must therefore provide sufficient
reasons why materials and documents in the identified stations should be
scrutinized. 126 However, what is the rationale for this requirement?
There are several reasons why the law demands that a party gives sufficient
reason(s) before it is entitled to an order of scrutiny. First, as long as the
election is conducted in accordance with the law, Section 83 of the Elections
Act provides that any irregularities, which do not affect the result of the
election, will not vitiate it. 127 Secondly, as the High Court observed in Philip
Mungu Ndolo v. Omar Mwinyi Shimbwa & 2 others, 128 scrutiny “is a time
consuming, laborious and arduous exercise” which is also costly.129 It should
not therefore be needlessly undertaken. Thirdly, the courts will not meet the
peremptory timelines set out in the Constitution and the Elections Act within
which election petitions should be disposed of,130 if they were to grant every
prayer for scrutiny. Therefore, apart from the criterion set out in Rule 33(2) of
the Election Petition Rules, as stated, the court must be satisfied that granting
the order for scrutiny will be in aid of “an expeditious, fair, just, proportionate
and affordable resolution of the issues raised in the petition.”131
In terms of Section 82(1) of the Elections Act and Rule 33(1) of the Election
Petition Rules which respectively state that the order for scrutiny can be
sought “at any stage” “during the hearing of an election petition, “such an
application can be heard before the actual hearing commences, in the course
of the hearing, or at the end of the trial.132 At whatever stage it is heard, the
125 Rule 33(2) states that “Upon an application under sub-rule (1), the court may, if it satisfied that there is
sufficient reason, order for a scrutiny or recount of the votes.”
126 Nicholas Salat v IEBC & 7 others, Kericho High Court Election Petition No.1 of 2013.
127 Section 83 of the Elections Act reads: “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
principle laid down in the Constitution and in the written law or that the non-compliance did not affect the result
of the election.” In Morgan v. Simpson, [1975] 1 QB 151 which has been followed in many cases in Kenya including
in the Raila Odinga case, it was held that it is “substantial” failure to carry out an election in accordance with the
principles laid down in the constitution and in the written law that will void an election.
128 Mombasa High Court Election Petition Number 1 of 2013.
129 See Ledama ole Kina v Samuel Kuntai Tunai & 10 others, Nakuru High Court, Election Petition No. 3 of 2013.
130 The Kenya Constitution, 2010, Article 140(2) and the Elections Act, 2012, ss. 75(2) & (4) (b), 85A.
131 Hassan Mohamed Hassan & another v IEBC & 2 others, Garissa High Court Election Petition 6 of 2013.
132 Hassan Mohamed Hassan & another v IEBC & 2 others, Garissa High Court Election Petition 6 of 2013.
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