124 4.7.5.2.15 As to the import of the scrutiny report prepared upon the grant of an order of the court, a scrutiny report will not lead to an election court nullifying the result unless it can be shown that there is a reversal of the candidate who had been declared as the winner (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014). 4.7.5.2.16 Moreover, it is not open to the court to order scrutiny and then make no reference to the report in determining the petition, particularly where the decision is to annul the election (Cyprian Awiti & Another v IEBC & 3 Others, Supreme Court Petition 17 of 2018; Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 Others, Nairobi Election Petition Appeal 6 of 2018). The impact of the scrutiny exercise is a material consideration in the determination of the petition and without this assessment, a decision to nullify the election cannot be supported. According to the Supreme Court in Clement Kungu Waibara v Annie Kibeh & Another, Supreme Court Petition 24 of 2018, at para 52: In view of such considerations, we are in agreement with the Appellate Court’s standpoint that the trial Court ought to have ascertained whether the irregularities revealed by the process of scrutiny, did affect the outcome of the election. It was clearly inapposite to settle the dispute on the basis of any conjecture, however logical. 4.7.5.2.17 An appellate court whose jurisdiction is limited to matters of law only cannot undertake or make an order for scrutiny and recount, as this would entail delving into matters of fact (Peter Gichuki King’ara v IEBC & 2 Others, Nyeri Civil Appeal No. 31 of 2013). However, the failure to make reference to a scrutiny report is a question of law that the appellate court ought to make a determination on, particularly where the findings of the trial judge are not supported by the scrutiny report (Cyprian Awiti & Another v IEBC & 3 Others, Supreme Court Petition 17 of 2018). 4.7.5.2.18 An appellate court will not ordinarily interfere with the exercise of the trial court’s discretion to grant of an order of scrutiny unless it can be demonstrated that there was no basis for the grant of the order (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition 2B of 2014; Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 Others, Election Petition Appeal 6 of 2018; Annie Wanjiku Kibeh v Clement Kungu Waibara & Another, Nairobi Civil Appeal 20 of 2018). 4.7.5.2.19 Further, an appellate court cannot remit or direct a trial court to undertake scrutiny and recount after the expiry of the period during which the latter court is required to hear and determine the dispute (Robinson Simiyu Mwanga & Another v IEBC & 2 Others, Kitale Election Petition No. 1 of 2017; Lemanken Aramat v Harun Meitamei Lempaka & 2 Others, Supreme Court Petition No. 5 of 2014). Editorial Note: The process of scrutiny and 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. 4.7.6 Conservatory Orders, Stay of Proceedings and Related Reliefs 4.7.6.1 Under statutory amendments enacted in 2016, the filing of an appeal against the final judgment and decree of a High Court sitting as an EDR court results in the automatic stay of the certificate of election results until the appeal is heard and determined (s 85A(2), Elections Act, 2011). This means that it is not necessary to file an application for conservatory orders or stay pending appeal from such final judgments and decrees. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION