120 4.7.5.4.0 A recount is limited to establishing the number of votes garnered by the candidates and the tallying of such votes (Justus Gesito Mugali M’mbaya v IEBC & 2 Others, Kakamega Election Petition No. 6 of 2013). 4.7.5.5.0 Scrutiny, on the other hand, goes beyond the simple question of the number of votes garnered by the candidates and extends to the question of the validity of such votes (Justus Gesito Mugali M’mbaya v IEBC & 2 Others, Kakamega Election Petition No. 6 of 2013; and Halsbury’s laws of England, at 12:454, defines ‘scrutiny’ as ‘a court supervised forensic investigation into the validity of the votes cast in an election’ (1990, Fourth Edition, LexisNexis)). 4.7.5.6.0 Consequently, there is no room for examination of electoral misconduct in a recount (Justus Gesito Mugali M’mbaya v IEBC & 2 Others, Kakamega Election Petition No. 6 of 2013). Although scrutiny and recount are conceptually different, the conduct of a scrutiny inevitably entails the conduct of a recount. The converse, however, is not true. 4.7.5.7.0 Consequently, the rationale for scrutiny is two-fold. First, that it is only the valid votes that confer an electoral advantage over a candidate in an election, hence the need to establish the validity and number of the valid votes a candidate garnered (the quantitative aspect). Second, that an election can be impugned based on electoral malpractices, misconduct and non-compliance with the law (qualitative aspect). 4.7.5.2 4.7.5.2.1 Principles of Scrutiny and Recount In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition 2B of 2014, the Supreme Court gave the following guiding principles at para 153 on applications for scrutiny and recount: a. The right to scrutiny and recount of votes in an election petition is anchored in Section 82(1) of the Elections Act and Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013. Consequently, any party to an election petition is entitled to make a request for a recount and/or scrutiny of votes, at any stage after the filing of petition, and before the determination of the petition. b. The trial Court is vested with discretion under Section 82(1) of the Elections Act to make an order on its own motion for a recount or scrutiny of votes as it may specify, if it considers that such scrutiny or recount is necessary to enable it to arrive at a just and fair determination of the petition. In exercising this discretion, the Court is to have sufficient reasons in the context of the pleadings or the evidence or both. It is appropriate that the Court should record the reasons for the order for scrutiny or recount. c. The right to scrutiny and recount does not lie as a matter of course. The party seeking a recount or scrutiny of votes in an election petition is to establish the basis for such a request, to the satisfaction of the trial Judge or Magistrate. Such a basis may be established by way of pleadings and affidavits, or by way of evidence adduced during the hearing of the petition. d. Where a party makes a request for scrutiny or recount of votes, such scrutiny or recount if granted, is to be conducted in specific polling stations in respect of which the results are disputed, or where the validity of the vote is called into question in the terms of Rule 33(4) of the Election (Parliamentary and County Elections) Petition Rules [2013] [now Rule 29(4) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017]. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION