123 IEBC & 2 Others, Presidential Petition No. 1 of 2017; Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 Others, Nairobi Election Petition Appeal 6 of 2018; Gideon Mwangangi Wambua & Another v IEBC & 2 Others, Mombasa Election Petition No. 4 of 2013; Peter Gichuki King’ara v IEBC & 2 Others, Nyeri Election Petition No. 3 of 2013 Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014; Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 Others, Supreme Court Petition No. 4 of 2014). In Peter Gichuki King’ara v IEBC & 2 Others, Nyeri Election Petition No. 3 of 2013, the Court held as follows: The law on scrutiny and recount that I have addressed hereinbefore suggests that scrutiny and recount in a [P]etition such as the present one is not…a gambling exercise that sets the court to rummaging through the ballot boxes to see whether any scintilla of evidence of electoral malpractice or irregularity can be found. If the Petition is based on any particular electoral malpractice or irregularity that would warrant scrutiny or recount of votes, the malpractice or irregularity must be pleaded and the evidence of such malpractice must be laid out or established prior to an order for scrutiny or recount; the court must be satisfied that, on the basis of the evidence before it, it is necessary to call for a scrutiny and recount, if not for anything else, to confirm the truth of that particular evidence. Asking the court for a scrutiny or recount where there is no evidence or basis for such an exercise would be more or less [like] engaging the court on a mission of searching for evidence where none exists, a practice that would not only be prejudicial to the respondents but would also be deprecatory in a legal system that believes in fair and impartial administration of justice. Therefore, a party desiring to raise new issues can only do so by way of amendment of the petition (Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 Others, Nairobi Election Petition Appeal 6 of 2018) 4.7.5.2.13 There are three judicial views on the practical consequences of the rule that it is not the purpose of an order for scrutiny and recount to unearth new evidence or unpleaded matters upon which an election could possibly be nullified. The first is that where scrutiny or recount reveals unpleaded electoral malpractices or irregularities, but the petitioner fails to prove the allegations pleaded in the petition, the court may properly dismiss the election petition (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014). The second is that where scrutiny reveals irregularities other than those that were pleaded, any party may pose questions upon such new findings and the election court may make findings on the effect of such irregularities on the declared results (Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 Others, Supreme Court Petition No. 4 of 2014; Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 Others Nairobi Election Petition Appeal 6 of 2018). The third is that an election court cannot turn a blind eye on serious electoral malpractices or irregularities exposed by scrutiny or recount merely because such malpractices or irregularities were not pleaded, for to do so would be a negation of constitutional principles on resolution of electoral disputes (Musikari Nazi Kombo v Moses Masika Wetangula & 2 Others, Election Petition No. 3 of 2013). 4.7.5.2.14 However, unpleaded irregularities can be considered where the court, in exercise of its discretion, orders, suo motu, a scrutiny, recount or re-tally. If irregularities other than those that were pleaded are unearthed, the court may rely on them in making its final determination of the petition, provided the parties are availed an opportunity to pose questions concerning the new findings (Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 Others, Nairobi Election Petition Appeal 6 of 2018). BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION