121
4.7.5.2.2
The Supreme Court in Raila Odinga 2017 (at para 51) went further and provided criteria for an
application for recount, relying on the Indian Supreme Court case of Arikala Narasa Reddy
v Venkata Ram Reddy Reddygari & Anr, Civil Appeals Nos. 5710-5711 of 2012, where it held as
follows:
(i) The court must be satisfied that a prima facie case is established;
(ii) The material facts and full particulars have been pleaded stating the irregularities in
counting of votes;
(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the
votes;
(iv) An opportunity should be given to file objection; and
(v) Secrecy of the ballot should be guarded.
4.7.5.2.3 The order of recount can be passed only if the petitioner sets out his/her case with precision,
supported by averments of material facts. The Court will not allow an application for recount
or scrutiny unless the same has been specifically pleaded in the petition. Where there is
no supporting evidence, or the evidence is contrary to the averments in the petition, the
application would fail (Raila Odinga 2017; IEBC & Another v Stephen Mutinda Mule & 3 Others,
Civil Appeal No. 219 of 2013).
4.7.5.2.4 As earlier stated, an election court may make an order for scrutiny on its own motion. In
Phillip Mukwe Wasike v James Lusweti Mukwe & 2 Others, Bungoma Election Petition No. 5 of
2013, it was held that the purpose of a suo moto order for scrutiny is to:
(1) assist the court to investigate if the allegations of irregularities and breaches of the
law complained of are valid.
(2) assist the court in determining the valid votes cast in favour of each candidate.
(3) assist the court to better understand the vital details of the electoral process and
gain impressions on the integrity of the electoral process.
(see also Robinson Simiyu Mwanga & Another v IEBC & 2 Others, Kitale Election Petition
No. 1 of 2017)
4.7.5.2.5 Even where the order is made on the application of a party, it must be demonstrated
that the grant of the order will establish the sovereign will of the people and that there is
sufficient factual basis laid in the petition for the grant of the order (Mohamed Mahamud
Ali v IEBC & 2 Others, Mombasa High Court Election Petition 7 of 2017; Apungu Arthur Kibira
v IEBC & 2 Others, Kakamega High Court Election Petition 6 of 2017; Michael Gichuru v Hon.
Rigathi Gachagua & 2 Others, Nyeri High Court Election Petition 2 of 2017; and Joseph Oyugi
Magwanga & Another v IEBC & 3 Others, Homa Bay Election Petition 1 of 2017).
4.7.5.2.6 It is not open to the petitioner to make a generalised prayer for scrutiny. They must specify
the polling stations in respect of which scrutiny is needed and lay the foundation for the
grant of scrutiny for each polling station (Rule 29(4), Elections (Parliamentary and County
Elections) Petition Rules 2017; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others,
Supreme Court Petition No. 2B of 2014; Albeity Hassan Abdalla v IEBC & 2 Others, Malindi
High Court Election Petition 8 of 2017; and Annie Wanjiku Kibeh v Clement Kungu Waibara &
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