VIII
Scrutiny in Electoral Disputes: A Kenyan
Judicial Perspective
Justice David K. Maraga*
Abstract
Because of the tremendous public interest that elections generate, scrutiny is
an integral aspect of any democratic electoral process intended to demonstrate
openness in the entire process. It transcends the entire electoral process from
the registration of voters; balloting; as well as counting, tallying and collating of
votes. In election petitions, scrutiny of the voting materials is one of the methods
the courts use to determine the integrity of an election. This chapter discusses
scrutiny in the entire electoral process; what it entails; when and on what basis
an order for scrutiny is granted; how the exercise of scrutiny is carried out; and
the application of the result of the exercise.
1.0 Introduction
O
ne of the main pillars of a functioning democracy is a peaceful transition
of office through elections, which the public perceives as transparent,
free and fair.1 The right to free, fair and regular elections based on universal
suffrage has been billed as “the fountain source of … democracy.”2 As one of
the world democracies, transparency and integrity are hallmarks of Kenya’s
* This chapter expresses the personal views of the author. It is not a reflection of the official position of either the
JCE or the Judiciary. The author is grateful to Brian Omwoyo and Priscilla Nyokabi for their research assistance.
1 V Autheman, The Resolution of Disputes Related to Election Results: A Snapshot of Court Practice in Selected
Countries around the World’ (2004), IFES Rule of Law Conference Series, available online at, http://www.
aceproject.org, at 29 December 2015.
2 K M Shradha Devi v. Krishna Chandra Pant & Others, (1980) SCI CA No. 277, [para 16].
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