101 • the contents of an election petition (Jimmy Mkala Kazungu v IEBC and 2 Others, Mombasa Election Petition 9 of 2017, where the results were contained in the affidavit but not in petition; Mbaraka Issa Kombe v IEBC & 3 Others, Malindi High Court Election Petition No. 10 of 2017, where the results and the date of declaration were not disclosed; Michael Gichuru v Hon. Rigathi Gachagua & 2 Others, Nyeri High Court Election Petition 2 of 2017 on the failure to particularise the date of declaration; and Mwamlole Tchappu Mbwana v IEBC & 4 Others, Mombasa Election Petition Number 5 of 2017 where there was a failure to state the results as declared and date of declaration); • the affidavit in support of the election petition (M’Nkiria Petkay Shen Miriti v Ragwa Samuel Mbae & 2 Others, Meru Election Petition No. 4 of 2013; and David Wamatsi Omusotsi v Returning Officer Mumias-East Constituency & 2 Others, Kakamega Election Petition 9 of 2017); and • the petitioner’s witness affidavits (Bernard Kibor Kitur v Alfred Kiptoo Keter & IEBC, Eldoret High Court Election Petition 1 of 2017, where affidavits were filed out of time). 4.1.2.5 On the other hand, it is argued that the post-2010 constitutional dispensation requires that substantive justice be done and ‘unless a petition is so hopelessly defective that it cannot communicate all the complaints and prayers of the petitioner, the court should ensure that the petition is heard and determined on merit’ (Martha Wangari Karua v IEBC & 3 Others, Nyeri Election Petition Appeal No 1 of 2017; Samwel Kazungu Kambi v Nelly Ilongo & 2 Others, Malindi Election Petition 4 & 5 of 2017; Washington Jakoyo Midiwo v IEBC & 2 Others, Siaya Election Petition 2 of 2017). The Court of Appeal in the Martha Karua appeal asserted: The jurisprudence from our courts in interpretation of the Constitution has been to avoid summary dismissal of Petitions and that power could only be exercised as a last resort where the petition is demonstrated to be hopeless or disclosing no reasonable cause of action. Another important factor, the trial court was bound to consider, was the strength and weakness of the Petition before striking out the Petition. We have noted that the trial court did not address its mind to the strength and weakness of the petition and responses filed by the parties. That primary duty was not carried out before arriving at the decision striking out the Petition. The trial court termed the Petition as hopeless without any basis and consideration. We therefore think the conclusion by the trial judge that the Petition was hopeless was draconian, drastic and unjustified. 4.1.2.6 However, the Court of Appeal reiterated that its reasoning should not be taken to mean that a petition could never be struck out for a procedural infraction. It was still open to an election court to strike out a petition for non-compliance where it went to the root of the dispute. We are not saying that an election court cannot strike out a Petition at all. Far from it. There may be instances where the procedural infraction goes to the root of the dispute. There are instances when an election Petition may be irredeemably defective, like when it is filed outside the Constitutional or statutory timeframes. It is for the court to determine whether a particular candidate was eligible to contest the election, having met the Constitutional and statutory requirements, and that the voting and the declaration of results were conducted in accordance with Article 86 of the Constitution. (Martha Wangari Karua v IEBC & 3 Others, Nyeri Election Petition Appeal No 1 of 2017) BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION