Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence 5.6 Where the only Plea in the Petition is for a Recount Rule 32 of the Election Petition Rules makes provisions for a special type of scrutiny. This is when a recount and tallying of votes is the only issue in an election petition. It reads: (1) Where the only issue in the election petition is the count or the tallying of the votes received by the candidates, the petitioner may apply to the court for an order to recount the votes or examine the tallying. (2) The Petitioner shall specify in the election petition that he does not require any other determination except a recount of the votes or the examination of the tallies. To the author’s knowledge, no petition was solely based on this provision. Therefore, we do not have the benefit of any court interpretation of this provision. Several questions spring to mind as one grapples with the correct interpretation of this Rule. What is the scope of the petition based solely under this Rule? What is meant by, “the tallying of the votes” or “the examination of the tallies.” Does the recount of votes referred to in this Rule extend to full scrutiny of all votes in the impugned election? Does a petitioner, in a petition based solely on this Rule, require establishing a basis by adduction of evidence before he obtains an order for recount or is the recount automatic? In other words, does a petitioner with such a pointed plea need to satisfy the court that a recount is justified as in other petitions? What type of averments should a petitioner make in his pleadings in such petition? At what stage should the recount be done? These are not by any chance simple and straightforward questions. It is not difficult to discern the scope of this provision. As the Rule states, a petition premised on this provision must be one limited to only a prayer for recount and/or tallying of the votes of the election in question. In addition, it appears mandatory that the petitioner should specify in the “election petition that he does not require any other determination except a recount of the votes or the examination of the tallies.” Since it is premised on Rule 32 of the Election Petition Rules, which does not apply to Presidential petitions, this right is only available to petitioners challenging parliamentary and county elections. Looked at on face value, the term “recount” appears to pose no problem. There is, however, more to a recount than a mere counting of votes for two or 266