99 RESOLUTION OF PARLIAMENTARY AND COUNTY ELECTION PETITIONS 4.1 The Petition 4.1.1 Pleadings 4.1.1.1 Generally, every election petition must conform to the mandatory requirements set out in the Elections Act, 2011, and the relevant procedural rules (the Elections (Parliamentary and County Elections) Petition Rules, 2017. 4.1.1.2 A party intending to challenge the validity of an election, must move the Court through an election petition (Article 87 of the Constitution.) The Election Petition and the response to the election petition constitute the main pleadings in EDR (Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 Others, Kakamega Election Petition No. 8 of 2013). 4.1.1.3 The purpose of the pleadings is to give the adversary a fair notice of the case of the party filing the pleadings. Parties to an election petition are bound by their pleadings (Ferdinand Ndung’u Waititu v IEBC & 8 Others, Nairobi Election Petition No. 1 of 2013; and Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 Others, Kakamega Election Petition No. 8 of 2013). 4.1.1.4 An election court will not permit a petitioner to prove complaints which are not set out in the election petition, unless a request for amendment is made and allowed by the court (Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 Others, Kakamega Election Petition No. 8 of 2013). Although there is no clear authority on the point, presumably, the rule equally applies to respondents in EDR, with the result that a respondent cannot adduce evidence or adopt a line of defence not set out in the response to the election petition. 4.1.1.5 The rule that binds parties to their pleadings has a bearing on the scope of the judgment and reliefs that flow from an election court. An election court will not base its decision on unpleaded matters merely because the parties have adduced evidence in respect of such matters (Ferdinand Ndung’u Waititu v IEBC & 8 Others, Nairobi Election Petition No. 1 of 2013; Jared Odoyo Okello v IEBC & 3 Others, Kisumu Election Petition No. 1 of 2013; Raila Odinga v IEBC & 2 Others, Supreme Court Election Petition 1 of 2017; and Robinson Simiyu Mwanga & Another v IEBC & 2 Others Kitale High Court Election Petition No. 1 of 2017- Ruling No. 4 on scrutiny of votes). 4.1.1.6 An election court may base its decision on an unpleaded issue, however, where it appears from the course followed at the trial that the parties had left the issue to the court for determination (Odd Jobs v Mubia [1970] EA 476; Clement Kung’u Waibara v Bernard Chege Mburu & 2 Others, Nairobi Civil Appeal No. 205 of 2011; and Justice Kalpana Rawal v Judicial Service Commission & 3 Others, Civil Appeal 1 of 2016). 4.1.1.7 Although parties are bound by their pleadings, the jurisdiction of an election court is partly inquisitorial in nature (Hassan Abdalla Albeity v Abu Chiaba & Another, Malindi Election Petition No. 9 of 2013). The rule that parties are bound by their pleadings does not, therefore, preclude an election court from inquiring into and determining whether a disputed election was conducted in accordance with the Constitution and relevant laws. Accordingly, an election court may consider any matter relevant to the validity of an election, irrespective of whether such matter was pleaded (Hassan Abdalla Albeity v Abu Chiaba & Another, Malindi Election Petition No. 9 of 2013). An election court, however, can decline to entertain an unpleaded issue if the making of a decision on the issue would occasion prejudice to a party (Hassan Abdalla Albeity v Abu Chiaba & Another, Malindi Election Petition No. 9 of 2013). BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION