Election Recounts in Kenya: Can the Court Declare a Different Winner?

Election disputes in Kenya often culminate in applications for scrutiny and recount of votes. A question that arises frequently is this: after a recount, can the court go further and declare a different winner — or must it simply nullify the election and order a fresh poll?

The Legal Position

After ordering a recount or scrutiny, the High Court may take one of three courses of action:

1. Confirm the IEBC-declared winner — if the recount affirms the original result.
2. Nullify the election and order a fresh election — if irregularities are established but the figures are not conclusive.
3. Declare another candidate the validly elected winner — if the recount produces a clear, final, and indisputable numerical outcome.

The key test is whether the recount produces a definitive numerical outcome that leaves no room for doubt.

Key Cases

Wavinya Ndeti v IEBC & Others (2013)

High Court — Machakos County Governor Election

The court ordered scrutiny and recount. Although irregularities were established, the recount did not produce a clear numerical winner. The court nullified the election but did not declare another candidate the winner, instead ordering a fresh election.

Lesson: Declaration of an alternative winner only happens where the figures are conclusive and beyond dispute.

Moses Masika Wetang'ula v Musikari Kombo (2008)

High Court — Parliamentary Election

Following scrutiny, the court found the declared results unreliable. The recount showed the petitioner had more valid votes. The court declared the petitioner the winner.

Lesson: Where a recount produces a clear and verifiable result, the court can and will declare the rightful winner.

When Courts Will Not Declare a Winner

Courts have consistently held that they will not declare a winner where:

• Results are irredeemably compromised;
• Statutory forms are missing or tampered with;
• Voter turnout or tallying cannot be reliably reconstructed.

In such cases, the only appropriate remedy is nullification and a fresh election.

The Settled Legal Principle

"An election court has jurisdiction to declare a winner other than the one declared by IEBC where scrutiny or recount establishes, with certainty, who won the election."

This principle is now settled law. The distinction lies entirely in whether the evidence, after recount, is conclusive — or whether it has been compromised beyond reliable reconstruction.