[2013] KEHC 1058 (KLR)

[2013] KEHC 1058 (KLR)

The court held that the application for scrutiny, recount, and retallying did not meet the legal threshold under the Elections Act and Election Petition Rules. Specifically, scrutiny of votes requires that the petitioner plead and provide evidence of irregularities in specific polling stations, which was not done...

Source-derived case information.

Citation
[2013] KEHC 1058 (KLR)
Parties
Applicant: Benjamin Ogunyo Andama; Respondent: Benjamin Andola Andayi; Respondent: Selly Chesang (Returning Officer); Respondent: Independent Electoral & Boundaries Commission
Court
High Court
Court Station
High Court at Kakamega
Jurisdiction
Kenya
Judgment Date
2 July 2013
Case Number
Election Petition 8 of 2013
Procedural Posture
Election Petition / Interlocutory Application (ruling on Scrutiny, Recount, and Retallying)
Outcome
application dismissed
Judges
GMA Dulu
Legal Topics
Scrutiny of Votes, Recount of Votes, Retallying of Votes, Pleading Requirements, Burden of Proof, Election Irregularities
Source Language
english
Election Petitions Civil Procedure Scrutiny of Votes Recount of Votes Retallying of Votes Pleading Requirements Burden of Proof Election Irregularities

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Summary, issues, holding and outcome

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Parties

Benjamin Ogunyo Andama

Applicant

Benjamin Andola Andayi

Respondent

Selly Chesang (Returning Officer)

Respondent

Independent Electoral & Boundaries Commission

Respondent

Procedural Posture

Election Petition / Interlocutory Application (ruling on Scrutiny, Recount, and Retallying)

Legal Issues

  1. 1 Whether the application for scrutiny, recount, and retallying of votes meets the legal threshold under the Elections Act and Election Petition Rules.
  2. 2 Whether the application is incompetent for failing to comply with statutory and regulatory requirements.
  3. 3 Whether the petitioner established sufficient basis for the orders sought in relation to the disputed polling stations.

Ratio Decidendi

The court held that the application for scrutiny, recount, and retallying did not meet the legal threshold under the Elections Act and Election Petition Rules. Specifically, scrutiny of votes requires that the petitioner plead and provide evidence of irregularities in specific polling stations, which was not done beyond two stations. The application sought scrutiny and recount in numerous stations not pleaded in the petition, amounting to a fishing expedition. Furthermore, a recount or retallying can only be ordered where the only issue in the petition is the count or tallying of votes, and this must be expressly stated in the petition, which was not the case here. The court found that...

Court Disposition

application dismissed

Orders

  • The application for scrutiny, recount, and retallying is dismissed.
  • Costs of the application shall abide the outcome of the petition.