157 5.10 Further Affidavits and Additional Evidence 5.10.1 An election court has discretion to allow the filing of further affidavits and admit new or additional evidence Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013). 5.10.2 An election court will not grant an application for the adducing of new or additional evidence where the grant of such an application will prejudice the other parties to the dispute or undermine the constitutional imperative of timely resolution of electoral disputes (Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013). 5.10.3 In Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013, the Supreme Court gave the following guidelines for determining applications for the filing of further affidavits and admission of new or additional evidence: • the admission of additional evidence is not an automatic right. Instead, the election court has a discretion on whether or not to admit the evidence; • further affidavits must not seek to introduce massive evidence which would, in effect, change the nature of the petition or affect the respondent’s ability to respond to the said evidence; • the parties to an election petition should strive to adhere to the strict timelines set out in EDR laws; and • admission of new evidence must not unfairly disadvantage the other parties to an election petition. 5.10.4 Again, the limited period within which the Supreme Court is required to hear and determine presidential election petitions may justify the rejection of applications for introduction of new or additional evidence (Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013). 5.11 Scrutiny and Recount/Re-tally 5.11.1 The Supreme Court may, either on its own motion or on application of any party, order for a scrutiny of votes to be conducted during the hearing of the presidential election petition. (s 82 of the Elections Act). The Supreme Court may also order a recount of the votes cast; and if the winner is apparent after the recount, it will proceed to direct the IEBC to issue a Certificate to the winning presidential candidate. 5.11.2 In the 2013 presidential election petition (Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013), the Supreme Court issued an order for suo motu scrutiny of the Forms 34 and 35 (declaration forms used in result declarations). The Court equally ordered a re-tally/recount of presidential votes at 22 polling stations which had featured in the petitioner’s grievance. 5.11.3 In the 2017 presidential election petition (Raila Odinga v IEBC & Others, Supreme Court Presidential Election Petition 1 of 2017), the petitioners’ Application for scrutiny of Forms 34A, 34B & 34C was allowed alongside scrutiny of the electoral management system. The outcome of the scrutiny featured heavily in the grounds relied upon to nullify the election. 5.11.4 Scrutiny and Recount have been addressed at length separately in section 4.7.5 of this Bench Book. The documents that guide the process from the grant of an order of scrutiny to the preparation of the report are annexed as an Appendix to this bench book. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION