138 Closely related to the 2nd petitioner’s argument is the argument…that the 1st petitioner ought to have specifically pleaded that he seeks to be declared the duly elected member of Parliament. In my view, this is not necessary. Once the issue of recount was pleaded and allowed upon application, the consequences of such recount are to be dealt with by the court. In this case, section 80(4) empowers the court to declare a winner once the conditions therein are satisfied. A pleading seeking to be declared the winner is unnecessary since section 80(4) itself specifies that such a declaration is one of the consequences of a recount. 4.9.5 Although section 80(4) of the Elections Act, 2011 empowers an election court to direct the IEBC to issue a certificate of election to an apparent winner, the court may nullify the election instead. The order of nullification will be preferred to the order of declaring an apparent winner where there is a serious doubt as to whether the apparent winner was the candidate elected by the voters. Moreover, a plain reading of section 80(4) of the Elections Act, 2011 indicates that the power of an election court to order the IEBC to issue a certificate of election to an apparent winner is discretionary. 4.9.6 Further, courts will nullify an election, instead of ordering the IEBC to issue a certificate of election to an apparent winner, where scrutiny or recount reveals multiple errors or irregularities that impinge on the integrity and credibility of the election (Richard Kalembe Ndile & Another v Patrick Musimba Mweu & 2 Others, Machakos Election Petitions Nos. 1 and 7 of 2013). The rationale for this approach is that it would be impossible to ascertain the will of the people or the apparent winner in such cases. In Ramadhan Seif Kajembe v Returning Officer, Jomvu Constituency & 3 Others, Mombasa Election Petition No. 10 of 2013, the Court at para 47 held as follows: The Constitution has given the court jurisdiction to hear the election petition and the court is expected by all the laws, to determine that the process of election has been free, fair and transparent and that the court must give effect to the tenets of the Constitution, rule of law, electoral laws and regulations made thereunder and if the court finds that the electoral process was badly flawed and that the process so undertaken could affect the results of the election as declared, the court should not hesitate to declare the election as null and void. Therefore, whereas elections are about numbers, where despite a finding that the [R]espondent won the election the court is of the view that an election was conducted so badly that it was not sufficiently in accordance with the laws relevant to an election it would still be declared void as the court cannot shut its eyes to such illegal acts which although cannot affect the result of the election, nonetheless clearly revealed that the election was not conducted in accordance with the law. An election is a process encompassing several activities from nomination of candidates through to the final declaration of the duly elected candidate. If any one of the activities is flawed through failure to comply with the applicable law, it affects the quality of the electoral process, and subject to the gravity of the flaw, it is bound to affect the election results. If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not. If the election is so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by breach of the rules or a mistake at the polls. But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless, if there was a breach of the rules or a mistake at the polls and it did affect the result, then the result is vitiated. 4.9.7 In Richard Kalembe Ndile & Another v Patrick Musimba Mweu & 2 Others, the Court cited the holding of the Court of Appeal in James Omingo Magara v Manson Oyongo Nyamweya & 2 Others, Kisumu Civil Appeal No. 8 of 2010, as a justification for refusing to declare an apparent winner upon recount: BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION