Balancing the Scales of Electoral Justice
Kariuki & 2 Others,139 on evidence being adduced that several Forms 16A
and 17A had alterations that were not countersigned by the Presiding Officers
thus casting aspersions on their authenticity, scrutiny was inevitably ordered.
In other petitions such as Musikari Nazi Kombo v Moses Masika Wetangula,140
Wavinya Ndeti v. The IEBC & 4 Others,141 and Mercy Kirito Mutegi v Beatrice
Nkatha Nyaga & IEBC142 which had unsubstantiated allegations, the courts
dismissed pleas for scrutiny.
The requirement for a basis to be laid as a condition precedent for an order of
scrutiny is not new. Though not specifically provided for in the old constitution
or the now repealed National Assembly and Presidential Elections Act, Rule
33(2) is a codification of a long held practice in electoral jurisprudence for this
requirement, which was hinged on the need for expeditious determination
of election petitions.143 It is also a requirement in the US144 and in India.145
5.5 Recounts Pursuant to Court Orders
The right to a recount pursuant to a court order is provided for in Rule 33(2)
of the Election Petition Rules. Though it is part of scrutiny, a recount is a
completely distinct process.146 A recount refers to the tallying and counting,
for the second or more times, of the votes cast in a particular election. Scrutiny
on the other hand is broader. It is an examination of electoral materials to
determine the result and validity of an election and, as stated, it includes a
recount.
Recounts pursuant to court orders are particularly important in three main
situations: where it is the only plea in the petition; whereupon recount of the
ballots cast, the winner is apparent; and, lastly, where the margin of victory is
narrow. They not only assist in the expeditious disposal of election petitions
but they also enhance transparency and public confidence in the electoral
dispute adjudication.
139 Nairobi High Court Election Petition No. 5 of 2008.
140 Bungoma High Court Election Petition No. 3 of 2013.
141 Machakos High Court Election Petition No. 4 of 2013.
142 Meru High Court, Election Petition No. 5 of 2013.
143 See Masinde v. Bwire and Another (2008) 1KLR (EP) 547, and Joho v. Nyange and Another, (2008) (No. 2) 3
KLR (EP) 188.
144 Steve Bickerstaff, ‘Counts, Recounts, and Election Contests: Lessons from the Florida Presidential Election,’
Florida State University Law Review, 29, 425 2001-2002, htt://heinonline.org Accessed on 23.10. 2015.
145 KM Shradha Devi v. Krishna Chandra Pant & Others, (1980) SCI CA No. 277, [par. 16].
146 Halsbury’s Laws of England, (1990) 4th ed., 15, 454.
265