119 v Ali Bunow Korane & 2 Others Garissa Election Petition 2 of 2017). 4.7.4.8 Suitability of substitute petitioners is demonstrated by sufficient interest in the election, drawn from residency and registration as a voter in the electoral area (Mohamed Mahamud Ali v IEBC & 2 Others, Mombasa Election Petition 7 of 2017). For a somewhat different reasoning see David K. Ole Nkedianye v Joseph Jama Ole Lenku & 4 Others, Kajiado Election Petition 2 of 2017. 4.7.4.9 Past conduct in relation to the petition may also be relevant in determining suitability as a substitute petitioner (Dickson Daniel Karaba v Kibiru Charles Reubenson & 2 Others, Kerugoya Election Petition 3 of 2017). Persons applying to be substitute petitioners ought to demonstrate how they will be prejudiced by the withdrawal of the petition. 4.7.4.10 The application for substitution ought to be considered after the application for withdrawal has been heard (Nathif Jama Adan v Ali Bunow Korane & 2 Others, Garissa Election Petition 2 of 2017; Mohamed Mahamud Ali v IEBC & 2 Others, Mombasa Election Petition 7 of 2017), unless the notice of intention to withdraw has already been published (Ezekiel Okondo Ochieku v IEBC & 2 Others, Kisii Election Petition 10 of 2013). 4.7.4.11 Upon substitution, the substituted petitioner stands in the same position as the original petitioner, and may be allowed to file supplementary affidavits, so long as he/she does not raise new issues, as this would advance a new case which would be different from the original petitioner’s case and hamper resolution of the petition within the constitutional timelines (Bernard Kibor Kitur v Alfred Kiptoo Keter & Another, Supreme Court Petition No. 27 of 2018). 4.7.4.12 The election court may, by an order, direct that the security deposited on behalf of the original petitioner be retained as security for any costs that may be incurred by the substituted petitioner, or require that the substituted petitioner pay, within three days of the order of substitution, security for costs before proceeding with the petition (Rule 24(3) and (4) Elections (Parliamentary and County Elections) Petitions Rules, 2017). 4.7.4.13 There is no right to be substituted in an election appeal that is withdrawn (Mwamlole Tchappu Mbwana v IEBC & 7 Others, Election Petition Appeal 4 of 2018). 4.7.5 Scrutiny and Recount 4.7.5.1 General 4.7.5.1.0 The request for recount and scrutiny is anchored on the right to access information held by the state (Article 35 of the Constitution; section 4 of the Access to Information Act, 2016; section 27 of the IEBC Act, 2011; and Raila Amolo Odinga & Another v IEBC & 2 Others, Presidential Election Petition No. 1 of 2017). 4.7.5.2.0 The law on scrutiny and recount of votes is set out in sections 80(4)(a) and 82 of the Elections Act, 2011 as read with Rules 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. 4.7.5.3.0 Although the terms ‘scrutiny’ and ‘recount’ are often used together, interchangeably, and petitioners often pray for ‘scrutiny and recount’ of the votes cast at an election, the two remedies are conceptually different. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION