Why Supreme Court may not order re-count of votes

The ruling was a first in Africa which would later be replicated in Malawi in 2020 when the Supreme Court nullified the re-election of President Peter Mutharika following a petition filed by the opposition.

The landmark ruling only handed Raila a temporary reprieve since he was defeated in the repeat polls that he boycotted. He however resolved to be sworn in as the people's president in January 2018.

Fast forward to August 2022 and the Azimio presidential candidate is yet again gearing up to challenge William Ruto's declaration as president-elect on August 15 by the Independent Electoral and Boundaries Commission (IEBC) chair Wafula Chebukati.

The apex court is expected to either nullify or uphold the presidential election but a third outcome is seemingly on the cards for the Martha Koome-led seven-judge bench with a possible order for a recount.

"Outgoing President Uhuru Kenyatta and presidential candidate Raila don't want the Supreme Court to nullify the presidential election. They don't want a rerun. They want the Supreme Court to declare that Raila won," lawyer Ahmednassir Abdullahi tweeted.

But is that an option for the apex court with a strict timeline of 14 days to hear and determine the presidential election petition?

The courts have in the past ordered a recount of votes for other election petitions. In 2013, Kibwezi West MP Patrick Musimba emerged the winner after Kalembe Ndile challenged his victory.

Speaking to The Standard, Suleiman Bashir, a lawyer, says it will be impossible to have the ballot papers produced before the Supreme Court so that it can preside over the re-tally of the votes given the strict timelines.

"The Supreme Court will be boxed into a corner as it has to abide by the constitutional timeline and cannot make a determination outside that," he says.

According to Bashir, although the court has a right to declare one as a winner if it does its own tally and realises the loser has won the election, it may not be an option for now.

Elections Act article 80 subsection 4 states: "An election court may order the Commission to issue a certificate of election to a President, a Member of Parliament or a Member of a County Assembly if-(a) upon recount of the ballots cast, the winner is apparent; and (b) that winner is found not to have committed an election offence."

"The Supreme Court will only give two remedies, nullifying or upholding the results of the just concluded General Election," says the lawyer.

Law Society of Kenya President Eric Theuri echoes Bashir, arguing that it is logistically impossible for the judges to rule on re-tally because of time.

However, he says should the petitioner want a re-tally then the team needs to be specific and have sufficient information on the polling stations they know had issues. This will be the determination of the judges.

"If the particular polling stations reduce the numbers of the president-elect and increase that of number two, then it will be invalidated," he says.

Since Ruto and Raila had a margin of 200,000 votes, Theuri says should this be closed with the variations of votes from a re-tally then the results will be nullified.

"Any significant increase on Azimio and should Raila get 49 per cent then the president-elect might not have attained the threshold of 50 per cent votes plus one and it will be nullified,'' he says.

The LSK boss argues that the lawyers of the petitioner and the respondent ought to be very careful because there is no way on one end they can say the process cannot be verified yet their prayer is for their candidate to be declared the winner.

The petitioners have seven days to file their case at the Supreme Court, and the respondents have four days to answer those allegations. The court is required to make a ruling two weeks from Monday.