170 Constitution had been interpreted by the Supreme Court in 2013, and if the findings of the Supreme Court on a fresh election were obiter dicta or formed part of the ratio decidendi of the Court’s decision. 5.21.1.8 On the meaning of a fresh election, since Article 140(3) of the Constitution dealt with the validity of a presidential election, what was anticipated, in the view of the Court, was a ‘completely fresh election’. On the other hand, a ‘fresh election’ within the meaning of Article 138(5) of the Constitution envisaged a run-off between the two leading candidates. The meaning of a fresh election as used in Article 138(5) of the Constitution could, therefore, not be imposed on Article 140(3) of the Constitution, since the two provisions envisaged two different sets of circumstances. 5.21.2 Candidates in a fresh election under Article 140(3) of the Constitution 5.21.2.1 On the question of who would be eligible to contest the fresh election, the Supreme Court held in the 2013 Raila Odinga case that it depended on who had petitioned the Supreme Court. Where the petitioner(s) were presidential candidates, only the presidential candidates who had contested the declared results would be eligible to run in the fresh election. The rationale for this interpretation was to the effect that a candidate who had not contested the declared result was deemed to have either conceded defeat, or acquiesced in the results as declared by IEBC, hence their exclusion from the fresh election. However, where the petition was filed by a person other than a presidential candidate, all the candidates in the original election would be entitled to contest the fresh election. 5.21.2.2 In the 2017 Raila Odinga case, it was the Court’s assessment that because of use of the word ‘suppose’ before addressing the possible scenarios that could arise in relation to Article 140(3), as set out by the Court in the 2013 Raila Odinga Case, the findings of the Supreme Court on who would be eligible to contest a fresh election were obiter. Moreover, the Supreme Court did not have jurisdiction to interpret the Constitution and in any case, the nature of constitutional interpretation required the principles of the case to transcend the case before it and be applicable to all similar cases. The fact that the scenarios had been addressed in a hypothetical manner indicated that the apex Court was only expressing an opinion. This was affirmed by the Supreme Court in John Harun Mwau & 2 Others v IEBC & 2 Others, Supreme Court Petition 2 & 4 of 2017, where the Court held that the Court in the 2013 Raila Odinga case was only responding to hypothetical questions posed by the Attorney General, which were not material to the determination of the petitions before the Court at the time. 5.21.2.3 In Ekuru Aukot v Independent Electoral & Boundaries Commission & 3 Others Petition 471 of 2017, the High Court, having ruled that the scenarios in Article 138(5) and 140(3) of the Constitution were not identical, the court assessed the 60-day timeline and found it insufficient to conduct a fresh nomination for a fresh election under Article 140(3). Therefore, it was in the public interest that only those who had participated in the invalidated election contest in the fresh election (see also s 86A(2) Elections Act). Even where a candidate had issued a statement conceding defeat, if they later retracted the statement and participated in the presidential election petition as an interested party supporting the petition, they were eligible to contest in the election. 5.21.2.4 Section 86A of the Elections Act, introduced by the Election Laws (Amendment) Act, 2017, and which provides that no fresh nominations are to be carried out in respect of a fresh election pursuant to Article 140(3) of the Constitution was also found to be in consonance with the Constitution in the case of Katiba Institute & 3 Others v Attorney General & 2 Others Nairobi BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION