134 4.8.3.3.8 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. 4.8.3.3.9 The implication of section 83, it has been determined, is that unless the irregularities or malpractices proved by the petitioner are such that they actually interfere with the free choice of the voters, the court will not be willing to interfere with the existing voter’s choice (Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Election Petition 1 of 2017). This is also in tandem with Lord Denning’s proposition, noted here in part, that ‘if the Election was so conducted that it was substantially in accordance with the law as to Elections, it is not vitiated by a breach of the rules or a mistake at the polls-provided that it did not affect the result of the Election’ (Morgan v Simpson [1974] 3 All ER 722). 4.8.3.3.10Generally, the standard of proof required in EDR is higher than the civil standard of balance of probabilities, but lower than the criminal standard of proof beyond all reasonable doubt (Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013; and Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Election Petition 1 of 2017). 4.8.3.3.11 There is an exception to this rule. A party who alleges the commission of election offences must prove such offences beyond reasonable doubt (Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013; Moses Masika Wetangula v Musikari Nazi Kombo & 2 Others, Supreme Court Petition No. 12 of 2014; and Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Election Petition 1 of 2017). In the case of Alfred Nganga Mutua & 2 Others v Wavinya Ndeti & Another, Supreme Court Petitions 11 and 14 of 2018, the Supreme Court held: It is now settled law in this country, (see Raila 2013 and many authorities following it as well as Section 107(1) of the Evidence Act), that the burden of proof lies upon the party alleging a fact to prove it to the required standard. It is also settled law, (see Raila 2017) that the standard of proof of any election offence or quasi criminal conduct is that of beyond reasonable doubt. 4.8.3.3.12 The rationale for this exception is that election offences are penal in nature and subject to prosecution by the Director of Public Prosecution once an election court finds that there is reason to believe that an election offence was committed (sections 21 and 22, Election Offences Act, 2016). Where election offences are alleged, the evidence must be specific, satisfactory, definitive, cogent and certain. 4.8.3.3.13 Before 2016, the courts required petitioners seeking to nullify an election on the ground of election offences to prove the offences beyond reasonable doubt (Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013; Frederick Otieno Outa v Jared Odoyo Okello & 4 Others, Supreme Court Petition No. 6 of 2014; and Moses Masika Wetangula v Musikari Nazi Kombo & 2 Others, Supreme Court Petition No. 12 of 2014). 4.8.3.3.14 The courts often gave two justifications for this rule. First, the quasi-criminal nature of election offences and the attendant penal consequences made the ordinary civil standard of proof inappropriate. Secondly, the proof of election offences results in curtailment of the convicted person’s political rights, by way of debarment from nomination or election for a specified period (section 24(3), Election Offences Act, 2016). The court also had power to make a finding during the hearing of an election petition as to whether an election offence had been committed and issue a certificate to this effect under section 87(1) of the Elections BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION