Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence Beside the peace and tranquility for the nation and the good reputation of IEBC, a transparent and credible tallying and collation of presidential election votes will forestall or minimize presidential election petitions. Proper and transparent scrutiny at the national tallying center cannot therefore be overemphasized. 5.0 Judicial Scrutiny 5.1 The Purpose of Judicial Scrutiny Neither Section 82 of the Elections Act nor Rule 33 of the Election Petition Rules states the objective of scrutiny when it is ordered by the court suo motu.91 However, when scrutiny is predicated on an application by a party to an election petition, these provisions give the purpose of scrutiny as being for the establishment of the “the validity of the votes cast.”92 The courts have interpreted these provisions as vesting them with jurisdiction “to investigate” the veracity of the allegations made93 in the petition to determine whether or not the conduct of the impugned election was in accordance with the dictates of the Constitution94 and ensure that “justice is done”95 and seen to be done to the parties. By examining the election materials enumerated in Rule 33(4) of the Election Petition Rules,96 the court is able to sieve and flag the invalid ballot papers97 and strike them out as stated in Section 82(4) of the Elections Act and add those that may have been wrongly excluded.98 91 The purpose of suo moto scrutiny was given in the Raila Odinga case as intended to enable the court “to understand the vital details of the electoral process, and to gain impressions on the integrity thereof.” 92 The Election Petition Rules, Rule 33(1). 93 Ramadhan Seif Kajembe v Returning officer of Jomvu Constituency & 3 others, Mombasa High Court Election Petition No. 10 of 2013. 94 Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & IEBC Meru High Court, Election Petition No. 5 of 2013. See also Hassan Abdalla Albeity v Abu Mohamed Abu Chiaba & another, Malindi High Court Election Petition 9 of 2013. Besides the principles of complete freedom of choice in the conduct of a free and fair election based on universal suffrage, in scrutiny the courts also ascertain compliance with Articles 27 and 81 which provide for affirmative action to achieve gender equity and fair representation of the youth and persons with disabilities who have in the past been marginalized. 95 Thomas Malinda Musau & Two others v. Independent Electoral Boundaries Commission & 2 Others, Machakos High Court Election Petition No. 2 of 2013. See also Nicholas Salat v IEBC & 7 others, Kericho High Court Election Petition No.1 of 2013. 96 The materials the Rule enumerates for examination are the written statements made by the presiding officers under the provisions of the Elections Act; copies of the registers used during the elections in the relevant polling stations; the written complaints of the candidate or his representative; the packets of spoilt papers; the packets of counterfoils of used ballot papers; and the packets of rejected ballot papers. 97 Section 82(2) of the Elections Act sets out the votes, which, though on their face appear valid, should nonetheless be rejected and struck out. These are the votes of people whose names are not on the voters register for the station concerned; who voted more than once; votes procured by corruption; votes of convicts disqualified from voting; and those cast for disqualified candidates. 98 Halsbury’s Laws of England, 15, 4thed, 501. 258