140 (ii) if it should be shown that an election was conducted substantially in accordance with the principles of the Constitution and the Election Act, then such election is not to be invalidated only on ground of irregularities; (iii) where, however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated; (iv) procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election; (v) If, for instance, there are counting or tallying errors which after scrutiny and recount do not change the result of an election, then a trial Court would not be justified, merely because [of] such shortfalls, to nullify such an election; (vi) a scrutiny and recount that reverses an election result against the candidate who had been declared a winner, would occasion the annulment of an election; and (vii) examples of irregularities of a magnitude that would [be deemed to] affect the result of an election are not closed. 4.9.11An election should not be annulled except on cogent and ascertained factual premises (Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 Others, Supreme Court Petition No. 4 of 2014). This means an election court should ascertain the actual effect of any proved or admitted errors or irregularities on the result of the election as opposed to assuming or speculating on the effect of such errors or irregularities on the result of the election. In Peter Gichuki King’ara v IEBC & 2 Others, Nyeri Civil Appeal No. 31 of 2013, the Court of Appeal gave the following general guidelines on the considerations to be made before the annulment of an election: i. whether there had been substantial compliance with the law and principle; ii. the nature, extent, degree and gravity of non-compliance; iii. whether the irregularities complained of adversely affected the sanctity of the election; and iv. after taking into account all the foregoing factors, whether the winning majority would have been reduced in such a way as to put the victory of the winning candidate in doubt. 4.9.12 As is evident from the foregoing, there are multiple criteria for nullification of elections. Besides the one set out above, courts have developed the following additional criteria for the nullification of elections: • an election must be nullified if the invalid or rejected votes are equal to or outnumber the winner’s plurality (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014; and Opitz v Wrzenewskyi [2012] 3 SCR 769); • if an election is conducted so badly that it is not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result is affected or not (Morgan v Simpson [1975] 1 QB 151); • if an election is so conducted as to be substantially in accordance with the law as to elections, it is not vitiated by breach of the rules or a mistake at the polls if that breach of the rules or mistake did not affect the result (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION