John Mbaabu Murithi v Jacob Mwirigi Muthuri & 2 others [2013] KEMC 34 (KLR)
The bottom line
#A Meru election court can order a vote recount on its own initiative where evidence suggests tampering, even when a party raised the issue late.
What this practically means
#Executive summary
#Key legal issues
#Power of the election court to order scrutiny and recount during the hearing
The court may order scrutiny and recount on its own motion or on application during the hearing, provided a basis is laid, and may do so before final judgment.
Section 82(1) of the Elections Act empowers the election court, on its own motion or on application during the hearing of a petition, to order scrutiny of votes in such manner as it determines. The petitioner's earlier scrutiny order was overturned on appeal and he never re-applied; raising scrutiny only in submissions was late. However, PW2's allegation that Form 35 for Marurui Primary School was altered laid a basis, and the court was duty-bound to investigate the truthfulness of allegations. It therefore ordered scrutiny on its own motion, limited to that polling station.
Timing of scrutiny and recount applications
The issue of scrutiny and recount must be dealt with before the judgment date is set; raising it in submissions was improper, though the court's own-motion power remained.
The petitioner had applied pre-trial for scrutiny of all ballot papers; that order was overturned by the High Court, which noted he could re-apply. He did not. The respondents argued waiver and lateness. The court agreed scrutiny cannot be raised for the first time in submissions after evidence closed, but held that its statutory power to order scrutiny suo motu where a basis appears was still exercisable before final judgment.
Legal principles established
#- An order of scrutiny can be made at any stage of the hearing before final judgment, on the court's own motion or where a basis is laid.
Court orders
#- 1.Partial scrutiny and recount limited to Marurui Primary School (polling station No. 087) to determine the number of votes garnered by each candidate and whether the results tally with Form 35
- 2.All documents and materials in respect of polling station No. 087 (Marurui Primary School) to be delivered to court by the 3rd respondent, pursuant to Rule 21 of the Election (Parliamentary and County Elections) Petition Rules, 2013
- Jurisdiction invoked
- Section 82(1) of the Elections Act; Rule 21 of the Election (Parliamentary and County Elections) Petition Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Mbaabu Murithi v Jacob Mwirigi Muthuri & 2 others [2013] KEMC 34 (KLR)", Case Analysis (2013). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/34/eng@2013-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.