142 not only was it not proved in light of the 10,051 votes margin, and the small crowd addressed at these gatherings, the supposed illegality, could not have affected the result… …The question we must then ask ourselves then is, whether the issue is substantial enough to nullify an election? The impugned decisions of this court indicate that elections are voided when they are a sham or a travesty, or a poor imitation of what an election ought to be. Invalidation of an election follows considerable irregularities, malpractices and non-compliance with the law. In light of the foregoing, we find that a single issue, even where the effect is criminal, where it does not amount to massive or substantial non-compliance with the law or irregularities is not enough to dissuade from the fact that an election was conducted largely in accordance with the law. This is the case in this present matter. 4.9.13 The criteria for nullification of elections discussed in this Bench Book should be read disjunctively. The proof of any one or more of the vitiating factors covered in these criteria, therefore, will normally result in the nullification of an election. 4.10 Payment of Costs 4.10.1 Costs in EDR proceedings follow the event (s 84 of the Elections Act, 2011). An election court may either award the total costs payable, or cap the maximum sum payable and leave the assessment thereof to the Taxing Officer of the Court. The election court may also determine which litigant will shoulder the costs, regard being had to, inter alia, their conduct in the proceedings (Rule 30 & 31, Elections (Parliamentary and County Elections) Petitions Rules, 2017; George Mike Wanjohi v Steven Kariuki, Supreme Court Petition No. 2A of 2014; Ibrahim Ahmed v IEBC and 2 Others. Nairobi Election Petition 21 of 2017; Mohamed Mahamud Ali v IEBC & 2 Others, Mombasa Election Petition Appeal 7 of 2018). 4.10.2 It is also within the discretion of the election court to disallow costs incurred because of vexatious conduct, unfounded allegations or unfounded objections by a party or ‘impose the burden of payment on the party who may have caused an unnecessary expense, whether that party is successful or not, in order to discourage any such expense’ (Rule 30(2) Elections (Parliamentary and County Elections) Petitions Rules, 2017; Clement Kung’u Waibara v Annie Kibeh, Kiambu Election Petition 1 of 2017). 4.10.3 Further, an election court may direct that the whole or part of any monies deposited as security be applied in the payment of taxed costs (Rule 31(3) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017). 4.10.4 The rationale for the power to cap costs is to encourage genuine petitioners to challenge flawed elections without being unduly hindered by the fear of incurring huge costs (per the dissenting opinion in Evans Odhiambo Kidero & 4 Others v Ferdinand Ndung’u Waititu & 4 Others, Supreme Court Petition No. 18 of 2014 at para 381 Martha Wangari Karua v IEBC & 3 Others, Nyeri Election Petition Appeal 1 of 2017). The capping of costs prevents the mischief of runaway costs previously demanded by successful parties in electoral disputes (Karanja Kabage v Joseph Kiuna Kariambegu Ng’ang’a & 2 Others, Nairobi Civil Appeal No. 301 of 2013). The capping of costs, therefore, is a valuable tool for promoting the right of access to justice (Article 48 of the Constitution). High costs are an impediment to the right of access to justice and are not meant to be punitive (Martha Wangari Karua v IEBC & 3 Others, Nyeri Election Petition Appeal 1 of 2017). BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION