By ROBERT NYASATO
Kisii, Kenya: A High Court on Tuesday declined to order the scrutiny and recount of votes in a petition challenging the election of Kisii Senator Chris Obure.
In dismissing the application filed by Mr Charles Mogere, the court sitting in Kisii held that the request for vote counting was made under the old election law.
Justice Ruth Sitati ruled that under the new elections regime, scrutiny and vote recount can only be granted if the court is satisfied there existed sufficient ground to warrant a recount.
“Under the new law, recount is available to a petitioner where the only issue for determination in the petition is the count or tallying of votes,” she ruled.
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She further held that scrutiny was available at any stage of proceedings as long as the court was satisfied that there was sufficient reason to make an order for the same.
Mogere had sought orders for scrutiny and recount of all votes cast in favour of all candidates who contested the Kisii County senatorial seat during the last elections.
In his petition, Mogere had listed Obure, Kisii County Returning Officer Shem Nyangau and the Independent Electoral and Boundaries Commission as respondents.
Opaque system
In the application, the petitioner sought to have the recount pronounced and announced prior to the substantive hearing of the petition.
Lawyer Ogutu Mboya for the petitioner, argued that the IEBC employed and used an opaque system riddled with inconsistencies.
He further claimed the system was devoid of transparency contrary to the provisions of the Elections Act and therefore, the electoral process was not free and fair.
On this basis, Mboya said it was not possible to ascertain who won in the hotly contested senetorial seat.
Mboya submitted that scrutiny and recount of votes would enable the court ascertain the nature, cause, extent and basis of the variance and discrepancies apparent in the statutory forms.
Opposing the application, lawyer Chacha Odera for Obure told the court that the petitioner had not given sufficient evidence to grant the order or proven beyond reasonable doubt that the IEBC process and system was flawed.
Odera said scrutiny could only be granted in the course of hearing of the petition and only after basis for the same has been established.
Hearing of the main petition commences next week.
The former Public Works minister won the seat under the Coalition for Reforms and Democracy ticket (CORD).
