103 The essence of that provision [Article 159(2)(d) of the Constitution] is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the Court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and the requirements of a particular case, and conscientiously determine the best course. 4.1.3.7 The High Court in Mbayi Sayeed Omsiritsa v Nancy Iyadi & 2 Others, Kakamega Election Petition Appeal No 2 of 2017, at para 28 summarised the principles to be considered in determining an allegation of non-conformity with the Rules as follows: i. The provisions of Rule 8(1) of the Elections Rules are mandatory. ii. It is of utmost importance for parties in an election petition to comply with the election rules. iii. The provisions of the constitution and the Elections Act override the Election Rules. iv. Where there is non-conformity with election rules, an election court has discretion to excuse the infraction. v. The court could only dismiss a case for non-conformity with the rules when the infraction complained of has caused prejudice to the other vi. In that case it must be demonstrated that the infraction complained of goes to the root of the dispute that is before court. vii. The court can dismiss a case for non-conformity with the election rules in a proper case. viii. The court should place substantive justice over procedural considerations, especially where the infraction is curable, employed sparingly and as a last resort. 4.1.3.8 In Mbayi Saeed, the Court opined that, although the Petitioner had failed to declare the results and the date of the declaration in the petition, he had nonetheless stated the same in the supporting affidavit as required by Rule 12(2) of the Rules, and, as a result, the nonconformity with Rule 8(1)(c) and (d) was not fatal or prejudicial to the respondent. 4.1.3.9 However, in Joel Makori Onsando & 2 Others v IEBC & 3 Others, Kisii High Court Election Petition 3 & 7 of 2017 (consolidated), the Court ruled that non-compliance with Rule 8, by referring to parties in the petition who were not cited as respondents and failing to enjoin the Deputy Governor as a party, were defects that could not be cured under Article 159(2)(d) or by amendment. 4.1.3.10 A petitioner who seeks the nullification of an election must plead with specificity the grounds upon which they seek an annulment of an election, as failure to do so puts the respondent(s) at a disadvantage of not knowing the petitioner’s case (Charles Oigara Mogere v Christopher Mogere Obure & 2 Others, Petition No. 9 of 2013). Editorial Note: While the Election Petition Rules provide in Rule 9 that the IEBC is a respondent to every election petition, the Rules are silent on joinder BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION