Kuria & 5 others v Hassan & 4 others (Petition 3, 4 & 5 of 2013 (Consolidated))
The bottom line
#Court ordered scrutiny of all presidential vote tally forms to verify election accuracy.
What this practically means
#The Supreme Court of Kenya ordered a detailed check of all presidential election results from the 2013 election. It required the electoral commission to open and review every Form 34 and Form 36 from all 33,400 polling stations, including diaspora votes. The goal was to confirm the number of registered voters, valid votes, and rejected votes. The court also ordered a recount of votes in 22 specific polling stations to see if votes cast exceeded registered voters. Both sides could send observers, who had to swear secrecy.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether to order scrutiny of Form 34 and Form 36 used in tallying presidential votes
- 2.Whether to order a re-tallying of presidential votes in specified polling stations
Key legal issues
#Whether the court should order scrutiny and re-tallying of presidential election results.
The court ordered scrutiny of all Forms 34 and 36 and a re-tallying of votes in 22 specified polling stations.
The court, having been seized of three consolidated petitions challenging the 2013 presidential election, studied the pleadings and determined that scrutiny and re-tallying were necessary to establish the accuracy of the vote tallying process. The orders were made as directions to facilitate the determination of the petitions.
Legal principles established
#- The Supreme Court can order scrutiny of election tally forms to verify accuracy.
- Scrutiny may include all Forms 34 and 36 from every polling station nationwide.
- Re-tallying votes in specific polling stations is allowed to check for irregularities.
- The court can set deadlines and appoint observers from both sides for transparency.
- Observers must take an oath of secrecy before accessing election materials.
Court orders
#- 1.There shall be a scrutiny of all Form 34 which were used by the IEBC in tallying the presidential votes from each of the 33400 polling stations in the country including the form 34 used by IEBC in tallying the Diaspora votes.
- 2.The scrutiny shall aim at establishing the number of registered voters, the number of valid votes cast and the number of rejected votes as indicated on each form.
- 3.There shall be scrutiny of all Form 36 which were used by IEBC in aggregating the tallies of presidential votes from all Form 34s.
- 4.The scrutiny will aim at establishing the accuracy or otherwise of the total tallies of the Presidential votes as indicated on the Form 34s.
- 5.The scrutiny shall also aim at comparing the number of registered voters indicated in form 34 and the number of registered voters on the principal register.
- 6.There shall be a re-tallying of the presidential votes in the following 22 polling stations [list annexed], using Forms 34, 36 and the principal register.
- 7.The re-tally shall aim at establishing whether the number of votes cast in each of these 22 polling stations exceeds the number of registered voters as indicated in the principal register.
- 8.The principal register that shall be used in this exercise is the external hard drive presented by IEBC in their annexture AIH.9 in the replying affidavit of Ahmed Isaac Hassan.
- 9.This exercise shall be carried out on the March 26, 2013, from 8.00 am. at a designated venue. The parties will be notified of the venue by the Registrar.
- 10.The results of this exercise shall be filed in the Supreme Court Registry by latest 4.00 pm on Wednesday the March 27, 2013.
- 11.The petitioner(s) shall each jointly appoint 10 agents to act as observers during the scrutiny exercise as per orders 1 – 6 above.
- 12.The respondents shall each jointly appoint 10 agents at act as observers during the scrutiny exercise as per orders 1 – 6 above.
- 13.An oath of secrecy and confidentiality shall be administered to each and every one of these designated agents referred to in order 10 and 11 above, for the purpose of carrying out this exercise. The oath shall be administered by a Registrar of this court on the March 26, 2013 at 7.30 am. The venue of the oath shall be communicated by the Registrar.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution (presidential election petition)
- Consolidated with
- Petition 4 of 2013, Petition 5 of 2013
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There shall be a scrutiny of all Form 34 which were used by the IEBC in tallying the presidential votes from each of the 33400 polling stations in the country including the form 34 used by IEBC in tallying the Diaspora votes.
There shall be a re-tallying of the presidential votes in the following 22 polling stations [list annexed], using Forms 34, 36 and the principal register.
It is so ordered.
Key timeline
#Practical implications
#Prepare for court-ordered election audits
When challenging presidential election results, immediately request scrutiny of Forms 34 and 36. This ruling shows the court will order nationwide audits if pleadings justify it. File motions early, specify polling stations for re-tallying, and prepare to appoint up to 10 observers who must take secrecy oaths. Use this precedent to push for verification of voter registers against tally forms.
Election uncertainty affects operations
Businesses should plan for extended election dispute periods. The court ordered a two-day nationwide scrutiny, meaning results can be delayed. Update contingency plans to account for potential recount orders that may prolong uncertainty. Monitor court directions closely, as they set tight deadlines (e.g., results due next day). Consider how delayed outcomes impact contracts, supply chains, and employee leave policies.
Your vote can be verified after election
If you suspect election irregularities, know that the Supreme Court can order a full audit of all polling station forms. This ruling shows that individual votes are traceable through Forms 34 and 36. You can report discrepancies to petitioners who may request scrutiny. However, observers must keep results confidential until officially released. Stay informed about court timelines if you want to follow the process.
Frequently asked questions
#What is Form 34 in Kenyan elections?+
Form 34 is the official document used by Kenya's electoral commission (IEBC) to record presidential vote tallies from each polling station. It shows the number of registered voters, valid votes cast, and rejected votes. The Supreme Court ordered scrutiny of all Forms 34 from the 2013 election to verify accuracy.
Can the Supreme Court order a recount of presidential votes in Kenya?+
Yes. In this 2013 case, the Supreme Court ordered a re-tallying of votes in 22 specific polling stations. The court can also order scrutiny of all tally forms nationwide if it finds sufficient reason in election petitions. This helps verify if votes cast exceeded registered voters.
How long does a presidential election petition take in Kenya?+
The Constitution requires the Supreme Court to hear and determine a presidential election petition within 14 days of filing. This ruling shows the court can issue procedural directions early, like ordering scrutiny, to meet that tight deadline. Results of scrutiny must be filed quickly, often within a day.
What happens if election forms are tampered with in Kenya?+
The court can order scrutiny of all Forms 34 and 36 to detect tampering. If discrepancies are found, the court may order a re-tally or nullify results. Observers from both sides monitor the process, and all agents must swear secrecy. This ensures transparency and accountability in the electoral process.
Cite this brief
#Cite this brief
Caselaw, "Kuria & 5 others v Hassan & 4 others (Petition 3, 4 & 5 of 2013 (Consolidated))", Case Analysis (2013). Petition 3, 4 & 5 of 2013 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/15/eng@2013-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.