141 Court Petition No. 2B of 2014; Morgan v Simpson [1975] 1 QB 151; Nana Addo Dankwa Akufo-Addo & 2 Others v John Dramani Mahama (Writ J1/6/2013)). Procedural or administrative irregularities and other errors occasioned by human imperfection are not enough, by and of themselves, to vitiate an election; • even where an election is conducted substantially in accordance with the law as to elections, the election is vitiated if there is a trivial breach of the rules or mistake at the polls that affects the result (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014; Rozaah Akinyi Buyu v IEBC & 2 Others, Kisumu Election Petition No. 3 of 2013; and Morgan v Simpson [1975] 1 QB 151); • Statutory forms setting out election results are vital documents in the election process as the credibility of an election is rated based on their accuracy. If the irregularities noted on such forms are grave, the court may conclude that the election was not transparent, free and fair. However, if the irregularities noted on such forms have no effect or substantial effect on the result, there would be no proper basis for nullifying the election (John Lokitare Lodinyo v Mark Lomunokol & 2 Others, Bungoma Election Petition No. 4 of 2013, Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Election Petition of 2017); • An election is a process that must be seen to be free and fair and the fact that a person achieved the highest number of votes upon scrutiny and/or recount is not necessarily decisive of the outcome of an election petition. Even where the returned candidate got the highest number of votes, the court is obliged to consider the quality of the election and see whether it comports with the principles of elections set out in Article 81 of the Constitution (Richard Kalembe Ndile & Another v Patrick Musimba Mweu & 2 Others, Machakos Election Petitions Nos. 1 and 7 of 2013; Republic v IEBC & 3 Others ex parte Coalition for Reforms and Democracy, Nairobi High Court Miscellaneous Civil Application No. 637 of 2016; James Omingo Magara v Manson Oyongo Nyamweya & 2 Others, Kisumu Civil Appeal No. 8 of 2010); • An election will not usually be annulled because of mere administrative errors. To warrant annulment, administrative errors must go to the root of the election and undermine the integrity of the electoral process (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014; and Opitz v Wrzenewskyi [2012] 3 SCR 769); • Following the repeal of Part VI of the Elections Act, by virtue of the Election Offences Act, 2016, election courts no longer determine election offences but can make a finding on whether possible election offences have been committed and transmit the finding to the Director of Public Prosecutions. The prosecution of election offences found by an election court should be commenced by the Director of Public Prosecutions within a year of the determination by the election court, or within a year of the election the offence relates to. The Chief Justice may, by Gazette Notice, appoint special magistrates to hear and determine such proceedings (sections 21, 22 and 23, Election Offences Act, No. 37 of 2016; section 87, Elections Act; Bernard Kibor Kitur v Alfred Kiptoo Keter & Another, Eldoret Election Petition No. 1 of 2017). • A finding of the possible commission of an election offence is not sufficient to nullify an election. The election court has to consider the effect thereof in determining whether the disjunctive tests set out in section 83 of the Elections Act have been met. The Supreme Court, in the case of Bernard Kibor Kitur v Alfred Kiptoo Keter & Another, Supreme Court Petition No. 27 of 2018, held as follows: Looked at as a whole, this matter at the High Court and at the Appellate Court turned on the issue of campaigning outside of the gazetted period. While the High Court found that the alleged campaigning, affected the ‘free and fair’ aspect of the election, the Appellate Court was of a different view finding that BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION