Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence
challenging elections of people’s representatives in the hope that they might
by chance succeed. To shut out frivolous petitions, the criterion for adducing
sufficient reasons before scrutiny is granted, should therefore apply to even
petitions based solely on Rule 32(1) & (2) of the Election Petition Rules.
Sufficient reasons should be given in the petition itself, the affidavit in support
of the petition or the affidavit in support of an application in that regard. Some
cases, such as those with admittedly narrow margins of victory, in the author’s
view, do not require adduction of any evidence to establish a basis for an order
of scrutiny in such petition. Any other case will require evidence.
5.7 Power of Court to Declare the Winner
Section 80(4) of the Elections Act vests the election court in respect of
presidential, parliamentary and county election petitions to declare the
winner after a recount of votes. It provides that:
(4) An election court may by order direct the Commission to issue a
certificate of election to a President, a member of Parliament or a member
of a county assembly if—
(a) Upon recount of the ballots cast, the winner is apparent; and
(b) That winner is found not to have committed an election offence.
This is an innovation in the current Elections Act, which was not in the
old electoral regime. In the old system, even where the petitioner met the
threshold in Section 80(4) of the current Elections Act, there was no provision
authorizing the court to declare the winner of the election. Instead, the courts
simply nullified elections and directed the conduct of by-elections.151
Though prayers were made under Section 80(4) in most petitions arising
from the 2013 general elections, especially where there were narrow margins,
none was granted as, in terms of the Court of Appeal’s definition of the term
“apparent” in John Oroo Oyioka v. IEBC & Others,152 as “visible; manifest;
[and] obvious, “no winner was “apparent” in any of them. For instance
in Richard Kalembe Ndile v Patrick Musimba Mweu153 the winner was
151 In the cases Ambala v. Waithaka & Another, Election Petition No. 5 of 1983 (2008)1KLR(EP)296 ; Anaswa v.
Mberia & Another, Election Petition No. 6of 1988( (2008)1KLR(EP)359; Wabuge v Limo & Another, Election Petition
No. 7 of 1988(2008) 1 KLR(EP) 417; Gitau v Thuo & Others Election Petition No.10 of 2008(2014)5KLR(EP) 254; and
Masaka v Khalwale & 2 Others, Election Petition No.2 of 2008(2014)5KLR(EP)550, after recounts pursuant to court
orders, the petitioners emerged clear winners but were not declared winners. Instead, the election courts directed
the conduct of by-elections.
152 [2013] EKLR.
153 Machakos High Court Election Petition No. 7 of 2013.
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