Balancing the Scales of Electoral Justice determination, first and foremost, of whether or not the President-elect has garnered the threshold set out in Article 138(4) of the Constitution 64 of more than 50% of all the votes cast and 25% of the votes cast in at least half of the counties to obviate a run-off.65 The interpretation of Article 138(4) of the Constitution took center stage in Raila Odinga case. After the 2013 general elections, three presidential petitions were filed. They were Petition No. 3 of 2013 (Moses Kiarie Kuria and 2 Others v. Ahmed Issack Hassan & Another), Petition No. 4 of 2013 (Gladwell Wathoni Otieno & Another v. Ahmed Issack Hassan & 3 Others) and Petition No. 5 of 2013 (Raila Odinga v. the Independent Electoral and Boundaries Commission & Three Others). The main contention in Petition No. 3 of 2013 was that contrary to Articles 86(b) and 138(c) of the Constitution, the IEBC had taken into account rejected votes in the final tally, which had the “prejudicial effect” of reducing “the percentage” of the “votes won by Mr. Kenyatta.” Counsel for the petitioners in that petition earnestly urged, what, in their view, was the dichotomous nature of a “ballot paper” and a “vote.” They submitted that the court should make a clear distinction between a “ballot paper” and a “vote.” They contended that a ballot paper is just a tool used “to convey the choice of a voter” while “a vote” is a ballot paper with a “definable and ascertainable” choice of a voter.66 Counsel further argued that a ballot paper remains a ballot paper until it is declared as validly cast in favor of a particular candidate. In other words, it is the determination of a ballot paper as valid that transforms it from a ballot paper into a vote. As such, and relying on the decision of Burhan, J. of the Seychellois Constitutional Court in Popular Democratic Movement v. Electoral Commission67 and Regulation 77(1) of the Kenyan Elections (General) Regulations 2012,counsel for the petitioner in Petition No. 3 of 2013 urged that rejected votes, which, at any rate Regulation 78(2) declares null and void, should not be included in the computation for the determination of whether any presidential candidate had met the threshold set out in Article 138(4). 64 The Kenya Constitution, 2010, Article 138(4) reads: “A candidate shall be declared elected as President if the candidate receives—(a) more than half of all the votes cast in the election; and (b) at least twenty-five per cent of the votes cast in each of more than half of the counties.” 65 The Kenya Constitution, 2010, Article 138(5) provides that if no candidate meets the threshold set in Article 138(4), there shall be a run-off. 66 J Harrington and A Manji (2015) ‘Restoring Leviathan? The Kenya Supreme Court, Constitutional transformation, and presidential election of 2013,’ (2015) Journal of Eastern African Studies, 9:2, 175-192, DOI: 10.1080/17531055.2015.1029296. 67 Constitutional Case No. 16 of 2011. 253