Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence an order of scrutiny, there is no condition precedent for an order of scrutiny at the court’s own motion. It appears that the court is supposed to discern the need for an order for scrutiny from the material placed before it and make the order suo motu. In the Raila Odinga case, on allegations of, inter alia, manipulation of the election documents, the Supreme Court ordered scrutiny suo moto. 5.3 Pleadings of Pleas for Scrutiny Before examining the manner of conducting court supervised scrutiny upon application by a party to a petition, it is important to consider the pleadings required for an order of scrutiny and the criteria for the grant of such an order. Neither the Elections Act nor the Election Petition Rules specifically require a plea for scrutiny to be made in the petition. They both talk of an “application.”104 The courts have, however, interpreted the provisions for scrutiny in Section 82 of the Elections Act and Rule 33 of the Election Petition Rules as requiring a specific plea in the petition as a basis for the grant of an order for scrutiny105 arguing that to allow an application for scrutiny not grounded on any prayer to that effect in the petition would be tantamount to amending and thus changing the character and scope of the petition.106 In the author’s view, this is a correct interpretation of these provisions for scrutiny. Rule 10(1)(e) of the Election Petition Rules requires the grounds upon which the petition is based to be pleaded in the petition and the facts in support thereof to be deposed in the affidavit in support of the petition. It therefore follows that the irregularities or malpractices that may warrant scrutiny should be concisely pleaded in the petition and in the affidavit in support.107 This requirement is also in other jurisdictions108 and was even in the old Kenyan regime.109 104 See the Elections Act, 2011 s. 82(1) and the Election Petition Rules, Rule 33(1) & (2). 105 Abdikam Osman Mohamed & another v IEBC & 2 others, Garissa High Court Election Petition No. 2 of 2013. See also Ndolo v. Mwangi 2 Others,[2014] 5 KLR (EP) 178, 225. 106 Kakuta Hamisi v Peris Tobiko & 2 others, Nairobi High Court Election Petition No. 5 of 2013. 107 In Philip Osore Ogutu vs Michael Aringo & 2 Others, Busia High Court Election Petition No. 1 of 2013, Tuiyott, J. opined that “[f]or a petitioner to deserve an order for scrutiny,” as Rule 10(1)(e) and (3)(b) of the Election Petition Rules requires, “then, as a starting point, [that] the petition and the affidavit in support must contain concise statements of material facts upon which the claim of impropriety or illegality of the casting or counting of ballots is made.” 108 The law in most US states requires specificity in the pleadings and prima facie proof of alleged election irregularities. See Steve Bickerstaff, ‘Counts, Recounts, and Election Contests: Lessons from the Florida Presidential Election,’ Florida State University Law Review, 29, 4252001-2002, htt://heinonline.org Accessed on 23.10. 2015. 109 Murgor v. Inginga & Another, [2008] 1 KLR (EP) 191. 260