20 is able to prove that the conduct of the election in question substantially violated the principles laid down in our Constitution as well as other written law on elections, will on that ground alone, void an election. He will also be able to void an election if he is able to prove that although the election was conducted substantially in accordance with the principles laid down in our Constitution as well as other written law on elections, it was fraught with irregularities or illegalities that affected the result of the election. 1.9.9.14 On the place of irregularities in nullifying an election, the Court stated at para 374: …in view of the interpretation of section 83 of the Elections Act that we have rendered, this inquiry about the effect of electoral irregularities and other malpractices, becomes only necessary where an election court has not concluded that the non-compliance with the law relating to that election, did not offend the principles laid down in the Constitution or in that law. But even where a Court has concluded that the election was not conducted in accordance with the principles laid down in the Constitution and the applicable electoral laws, it is still good judicial practice for the court to still inquire into the potential effect of any irregularities that may have been noted upon an election. This helps to put the agencies charged with the responsibility of conducting elections on notice. 1.9.9.15 However, following the nullification of the presidential election, the Election Laws (Amendment) Act 34 of 2017 was enacted by Parliament, which proposed to make the test in section 83 conjunctive, requiring proof of both non-compliance with the Constitution or written law and the impact of irregularities on the outcome of the election before a court could nullify the result. Nevertheless, the proposed amendment to section 83 was declared unconstitutional in the case of Katiba Institute & Africa Centre for Open Governance v Hon. Attorney General & 2 Others, Nairobi High Court Petition No. 548 of 2017, with the Court noting that amendments to election laws ‘must be forward looking in order to make elections more free, transparent and accountable, than to shield mistakes that vitiate an electoral process’. 1.9.9.16 No legislative amendment was introduced to align section 83 with the decision of the Court, nor was an appeal preferred against the decision of the Court. Reference may, therefore, be made to similar situations where an amendment was declared unconstitutional to ascertain the effect of the declaration of unconstitutionality. 1.9.9.17 In Senate & 2 Others v Council of County Governors & Others, Petition 25 of 2019 [2022] KSC 7 KLR, where the amendment to section 91(f) of the County Governments Act was declared unconstitutional, the Supreme Court ruled that the effect of the declaration of unconstitutionality was to restore the previously worded section 91(f) of the County Governments Act (para 14). Similarly, in the case of Attorney-General & 2 Others v David Ndii & 79 Others, Supreme Court Petition 12 of 2021 (consolidated with Petitions 11 and 13 of 2021), the Supreme Court addressed the issue of the quorum of the IEBC in light of the amendments to paragraph 5 of the Second Schedule to the IEBC Act, which were also declared unconstitutional in the Katiba case. The majority of judges endorsed the position taken in the Senate case that the effect of an amendment being declared unconstitutional is to restore the status quo before the amendment. 1.9.9.18 In light of the above jurisprudence of the Supreme Court, by parity of reasoning, the declaration of invalidity of the amendment to section 83 had the effect of restoring the section as it stood before Election Laws (Amendment) Act 34 of 2017. The test of invalidity thus remains a disjunctive rather than a conjunctive test, as affirmed in Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Election Petition 1 of 2017. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION