139 It is true that on the scrutiny and recount of the votes, the appellant still had the largest number of votes. But as I have pointed out that was not all the learned [trial] Judge was supposed to go by though it was an important consideration to bear in mind… The scrutiny and recount of the votes by the learned Judge disclosed numerous irregularities, among them unsigned and, therefore, unauthenticated Forms 16A, three missing ballot boxes, broken ballot seals and many others set out in the learned Judge’s judg[e]ment. In my view these irregularities could not have been cured under section 28 of the National Assembly and Presidential Election Act. That section cannot be used to cover a situation where even the source of the votes in the ballot boxes cannot be conclusively determined. Again, to use that section to cover the disappearance of ballot boxes, irrespective of the number of the ballot papers in the missing boxes, would simply amount to encouraging vandalism in the electoral process. Our experiences in Kenya following the 2007 elections part of which we are discussing herein, show us that no Kenyan, whether as an individual or as part of an institution, ought to encourage such practices. Section 28 cannot be used to white-wash all manner of sins which may occur during the electoral process and for my part I have no doubt that Parliament did not design the section for the purpose of covering serious abuses of the electoral process. 4.9.8 An election court should exercise caution and restraint in applying section 80(4) of the Elections Act, 2011, so that it declares a winner in the clearest of circumstances that leave no doubt as to what the will of the voters on the material polling day was. Without caution and restraint, the election court would run the risk of disenfranchising voters by substituting the will of the electorate with that of itself and imposing a leader on the electorate. Nullification of Elections 4.9.9 Section 83 of the Elections Act, 2011, provides that no election shall be declared to be void because of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election. In Kithinji Kiragu v Martin Nyaga Wambora & 2 Others, Embu Election Petition No. 1 of 2013, the Court adopted the following definition of the phrase ‘affect the result of the election’ for purposes of section 83 of the Elections Act, 2011: the word result means not only the result in the sense that a certain candidate won and another candidate lost. The result may be said to be affected if after making adjustments for the effect of proven irregularities the contest seems much closer than it appeared to be when first determined. But when the winning majority is so large that even a substantial reduction still leaves the successful candidate a wide margin, then it cannot be said that the result of the election would be affected by any particular non-compliance of the rules. (See the Tanzanian case of Mbowe v Elilifoo [1967] EA 240 for the origin of this definition) 4.9.10 In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014, the Court summarised the law on nullification of elections as follows (at para 216 to 219): (i) an election should be conducted substantially in accordance with the principles of the Constitution, as set out in Articles 81(e) and 86; BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION