Balancing the Scales of Electoral Justice indeterminate because the409 votes, which went missing, could have tilted the result either way. Even where the criteria in the section are met, a winner cannot be declared if the impugned election was fundamentally flawed. In the said case of John Oroo Oyioka v. IEBC & Others,154 besides other irregularities, the Court of Appeal held that permitting people, whose names were not on the voters’ register to vote undermined the integrity of the election, set aside the trial court’s declaration of the petitioner as the winner and directed the conduct of a by-election. 5.8 Where the Margin of Victory is Narrow Where the margins of victory are relatively narrow,155 courts have generally held that for justice to be done and be seen to be done, recounts should be ordered.156 In such cases, as a recount might, on its own, determine a petition, the courts have often ordered scrutiny without requiring the petition to lay any basis by adduction of evidence.157 These principles notwithstanding, it appears that narrow margins of victory do not guarantee an automatic right to a recount. The integrity of the recount itself has to be considered. In Bush v. Gore,158 the US Supreme Court held that the manual recount directed by the Florida Supreme Court was going to foul the equal protection rule in the Fourth Amendment of the American Constitution and lead to unequal treatment of voters. 5.9 Conduct of Scrutiny While Section 82 of the Elections Act provides in broad terms the right to an order of scrutiny, Rule 33 of the Election Petition Rules sets out the mechanism of conducting the court supervised scrutiny. It states that the scrutiny exercise is to be supervised by the Deputy Registrar159 and shall be confined to the polling stations in which the results are disputed. Sub-rule 154 [2013] EKLR. 155 In the cases of William Maina Kamanda v. Margaret Wanjiru Kariuki & 2 Other, Nairobi High Court Election Petition No. 5 of 2008 with a margin of 895; Richard Kalembe Ndile v Patrick Musimba Mweu, Machakos High Court Election Petition No. 7 of 2013 with a margin of 200 and John Oroo Oyioka v. IEBC & Others, [2013] EKLR with a margin of only 5 votes, scrutiny was ordered. However, Wavinya Ndeti v. The IEBC & 4 Others, Machakos High Court Election Petition No. 4 of 2013 where the margin was 164,963 votes, scrutiny was declined. 156 Joho v. Nyange and Another, (2008) (No. 2) 3 KLR (EP) 188. 157 In Hemed Said v. Ibrahim Mwaruwa, Machakos High Court Election Petition No. 4 of 2013; Onamu v. Maitsi, High Court Election Petition No. 2 of 1983; Burundi Nabwera v. Joshua Angatia, High Court Election Petition No. 4 of 1983; and Kirwa v. Muliro, High Court Election Petition No. 13 of 1988 with margins of 62, 30, 534, and 7 respectively, cases decided in the former electoral regime, scrutiny was ordered in each case without laying any basis. 158 531 U.S. 98 (2000). 159 In the case of county petitions tried by the Subordinate Courts, the Executive Officer supervises the exercise. 269