Shitandi Edith Were v Henry Majimbo Okumu & 2 others [2017] KEMC 19 (KLR)
The bottom line
#A Bungoma election court refused a recount and scrutiny of votes because the petitioner could not show specific, evidence-backed reasons to doubt the results.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to apply for scrutiny and recount
A party to a petition is entitled to apply, and timing at close of trial is permissible
Section 82 of the Elections Act permits an election court, on its own motion or on a party's application during the hearing, to order scrutiny. Rule 29 of the 2017 Rules allows parties to apply. The court held the application could not be attacked as an afterthought since precedent permits it at any time during the hearing.
Sufficient reason for scrutiny
Not demonstrated; allegations of alterations, missing signatures and omissions were refuted on inspection of forms or explained
The court examined the impugned forms 36A against the originals. Alleged multiple alterations were not apparent, discrepancies between carbonated copies and originals were explained by the returning officer, agents signed in 23 of 25 stations, and minor omissions (e.g. deleted registered voters figure) did not affect results which were undisputed. None of the Section 82(2) categories of votes to be struck out was shown.
Costs
Costs reserved to the cause
Having declined the application without determining the petition, the magistrate made no immediate award of costs against the applicant but left costs in the cause.
Legal principles established
#- An application for scrutiny or recount may be made at any stage during the hearing of an election petition and is not an afterthought merely because it is made at the close of trial
- Scrutiny does not lie as a matter of course; the applicant must demonstrate sufficient reason, confined to polling stations where results are disputed
- Scrutiny is not a tool for searching for new evidence
Court orders
#- 1.Application for scrutiny and recount declined in its entirety
- 2.Costs to be in the cause
- Jurisdiction invoked
- Section 82 of the Elections Act No. 24 of 2011 and Rule 29 of the Elections (Parliamentary and County Elections) Petition Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shitandi Edith Were v Henry Majimbo Okumu & 2 others [2017] KEMC 19 (KLR)", Case Analysis (2017). Bungoma Election Petition (Member of County Assembly, Khalaba Ward, Kanduyi Constituency) - Notice of Motion dated 17th October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/19/eng@2017-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.