Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence
Canadian Elections Act, a judicial recount is in practice granted on an exparte application82 and in conducting it, the presiding judge subsumes the
role of the returning officers. A contest of election results on the other hand
is premised on allegations of irregularities, fraud or corruption and illegal
practices83 and is filed after the declaration of election results. It is akin to the
Kenyan election petition.
4.4 Scrutiny at the Tallying Centers
The fifth stage of scrutiny is at the tallying centers.84 The first phase of tallying
is at county headquarters for the senatorial, gubernatorial, and county women
representative elections; and at the constituency or district headquarters for
Presidential election and that of the members of the national and county
assemblies. The scrutiny at this stage is limited to the examination of the
forms with the numerical results from polling stations.85 After this tallying
and collation of votes, the results thereof are transposed to Forms 36 for
Presidential election and to Forms 35 for all other elections.
The second phase of tallying and collation of votes is in respect of the
Presidential election and is carried out at the national tallying center. This
tallying is limited to only the examination of Forms 34, which have the
numerical results from polling stations and 36, which have the constituency
tallies. Particular emphasis is, once again, placed on the aspect of transparency
in the tallying of the votes at that center. One of the major complaints in the
Raila Odinga case was the ejection of the party agents and observers from the
presidential vote tallying room. The parties traded accusations on the cause
of that ejection. While the petitioners claimed that, contrary to Regulation
85(1) (e) of the Election Regulations, the IEBC ejected party agents and
accredited observers from the National tallying center when they pointed out
82 G Tardi, ‘Judicial Recount of Election Results: The Saskatchewan Experience in 2000,’ MSU-DCL Journal of
International Law (2001) 10, 477,, http://www.heinonline.org, at 23 October 2015.
83 G Tardi, ‘Judicial Recount of Election Results: The Saskatchewan Experience in 2000,’ MSU-DCL Journal of
International Law (2001) 10, 474, (http://www.heinonline.org) at 23 October 2015.
84 The Election Regulations, 2012, reg. 84 provides for three tallying centers, which shall be located in public
buildings and gazetted by the Commission. They are in Nairobi, for the presidential election; at county headquarters
for the senatorial, gubernatorial, and county women representative elections; and at constituency or district
headquarters for the election of the members of the national and county assemblies.
85 These are Forms 34 for presidential elections; Forms 35 for elections of members of the national county
assemblies as well as senatorial, gubernatorial and county women representative elections. The results of the
tallying and collation of votes at the constituency and county tallying centers are recorded on Forms 36 and duly
announced at those centers. The winners of the elections, that is, members of the national and county assemblies
as well as the county senatorial, gubernatorial and women representatives are then issued with the certificates of
results in Forms 38.
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