158 5.12 Withdrawal of Election Petitions and Substitution of Petitioners 5.12.1 Since election petitions are inherently brought in the public interest, an election petition can only be withdrawn with the leave of the election court (Rule 20(1), Supreme Court (Presidential Election Petition) Rules, 2017). Further, a petitioner wishing to withdraw an election petition must file an application for withdrawal of the petition vide Form E, set out in the Second Schedule to the Supreme Court (Presidential Election Petition) Rules 2017. 5.12.2 The Court may issue any orders upon application of withdrawal, as it may deem fit. 5.13 Hearing and Determination 5.13.1 Due to the strict constitutional timelines, hearing should commence immediately after pretrial and should continue uninterrupted and on a day-to-day basis, unless there are exceptional circumstances (Rule 18 and 19 of the Supreme Court (Presidential Election Petition) Rules 2017). 5.13.2 Hearing of presidential petitions is by way of affidavit evidence and written submissions. (Rule 18(2) of the Supreme Court (Presidential Election Petition) Rules 2017). 5.14 Burden of Proof 5.14.1.0 The Supreme Court in the case of Raila Odinga & Another v IEBC & Others, Presidential Election Petition 1 of 2017, described the burden of proof as the duty which lies on one or the other of the parties either to establish a case or to establish the facts upon a particular issue. 5.14.1 Legal burden of proof 5.14.1.1 In election petitions, just as in civil matters, the legal burden of proof rests solely on the petitioner throughout the course of the trial (Opitz v Wrzenewskyi [2012] 3 SCR 769; and John Harun Mwau & 2 Others v IEBC & 2 Others, Supreme Court Petition 2 & 4 of 2017). This much is codified in section 107(1) of the Evidence Act. 5.14.2 Evidential burden of proof 5.14.2.1 Though initially resting on the petitioner (the party bearing the legal burden of proof), the evidential burden of proof may shift between the parties as the weight of evidence adduced during the trial varies. The evidential burden of proof shifts to the respondent once the petitioner proves sufficient evidence to impugn an election, if uncontroverted. (Raila Amolo Odinga & Another v IEBC & 4 Others & Attorney General & Another, Presidential Petition No. 1 of 2017; and John Harun Mwau & 2 others v IEBC & 2 Others, Supreme Court Petition 2 & 4 of 2017). 5.15 Standard of Proof 5.15.1 Standard of proof refers to the extent a petitioner is required to go to succeed in his/her petition. The standard of proof in EDR is an ‘intermediate standard’, one that is greater than a ‘balance of probabilities’ but lower than ‘beyond reasonable doubt’ (Raila Amolo Odinga & Another v IEBC & 4 Others & Attorney General & Another, Presidential Petition No. 1 of 2017). 5.15.2 The implication of section 83 of the Elections Act, it has been determined, is that unless the irregularities or malpractices proved by the petitioner are such that they actually interfere with the free choice of the voters, the Court will not be willing to interfere with the existing voter’s choice (Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Election Petition No. 1 of BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION