Peter Kipkirui Langat v Robert Kipkirui Metet & 2 Others [2013] KEMC 85 (KLR)
The bottom line
#A Kenyan election court ruled that vote scrutiny cannot be ordered before trial begins; you must first prove problems through tested evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether scrutiny and recount can be ordered when not prayed for in the petition
Yes; the court may order scrutiny suo moto or on application by a party under Section 82(1), so absence of such a prayer in the petition is not fatal
Section 82(1) permits the election court to order scrutiny on its own motion or on a party's application, and Rule 33(1) allows parties to apply at any stage. The court held that a petitioner need not have included a scrutiny prayer in the petition; what matters is sufficient reason shown on the evidence. The objection that the application amounted to an impermissible amendment of the petition therefore failed.
Whether a basis must be laid before scrutiny is ordered
Yes; scrutiny is not automatic and general allegations without evidentiary support do not constitute a basis
Relying on Masinde v Bwire, Joho v Nyange, Philip Ogutu v Michael Aringo, Peter Gichuki King'ara and Rishad Hamid Ahmed Amana, the court held that the applicant must lay a foundation, normally by adducing evidence at the hearing. The petitioner's paragraph 4 allegations were general and unsupported by annexed evidence, and scrutiny cannot be a tool for discovering fresh evidence.
Timing of the scrutiny application
The application was premature; scrutiny should be ordered during the hearing after evidence has been tested on oath, unless the only issue is count and tallying under Rule 32(1)
The court adopted Ngaah J's reasoning in Peter Gichuki King'ara that it is erroneous to order scrutiny at the pretrial stage unless the sole issue is the count and tallying of votes under Rule 32(1). The present petition raised issues beyond a recount, so Rule 32 did not apply, and the evidence was yet to be tested. Kimaru J's remarks in Rishad Amana were fully endorsed.
Legal principles established
#- Scrutiny of votes may only be ordered during the hearing of an election petition after the trial has commenced, not at the pretrial stage
- A party need not have prayed for scrutiny or recount in the petition for the court to order it, but a basis must be laid case by case
- Scrutiny should not be used as a fishing expedition to discover new or fresh evidence
- An order for scrutiny is not automatic; the court must be satisfied there is sufficient reason
Court orders
#- 1.The Notice of Motion dated 27th May 2013 is dismissed with costs in the cause for being premature
- 2.Liberty that the court may invoke Section 82(1) of the Elections Act and order scrutiny in the course of proceedings when necessary, and any party may move the court for scrutiny at any stage of the hearing before delivery of judgment
- Jurisdiction invoked
- Article 38(1), 87(1), 88(4)(e), 159(1) of the Constitution of Kenya, 2010; Section 82(1) of the Elections Act No. 24 of 2011; Rules 4(1), 32(1) and 33(1) of the Elections (Parliamentary and County Elections) Petition Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kipkirui Langat v Robert Kipkirui Metet & 2 Others [2013] KEMC 85 (KLR)", Case Analysis (2013). Election Petition (Silibwet Township Ward), Bomet. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/85/eng@2013-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.