169 5.21 Conduct of a fresh election subsequent to an annulment of declared presidential results 5.21.1 Meaning of ‘a fresh election’ under Article 140(3) of the Constitution 5.21.1.1 If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the Court’s determination (Article 140 (3) of the Constitution). 5.21.1.2 The question of what amounted to a ‘fresh election’ and the parameters of such an election featured in the 2013 presidential election determination, i.e., Raila Odinga & 5 Others v IEBC & 3 Others, Supreme Court Petitions 5, 3 & 4 of 2013. The Attorney General, as an amicus curiae, sought the Court’s interpretation on whether fresh election referred to in Article 140(3) of the Constitution meant ‘an entirely new presidential election (including nomination process) or whether it was similar to that contemplated under Article 138 (5) which was limited to the same candidates as at the annulled polls.’ 5.21.1.3 The Supreme Court rendered itself on this question, at paragraph 289, on the parameters of a ‘fresh election’ following an annulment of the declared presidential election results. On the question of whether a fresh nomination would be required, the Court held that: It is clear that a fresh election under Article 140(3) is triggered by the invalidation of the election of the declared President-elect, by the Supreme Court, following a successful petition against such election. Since such a fresh election is built on the foundations of the invalidated election, it can, in our opinion, only involve candidates who participated in the original election. In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest. 5.21.1.4 In its determination of the 2017 Raila Odinga Case, the Supreme Court noted that the parties had not addressed the Court on the question of a fresh election, and, therefore, it was not proper for the Court to delve into an interpretation of the term. Moreover, it was the Court’s view that the matter had been addressed in the 2013 Raila Odinga Case, and further that the first Interested Party, Dr Ekuru Aukot, had filed an application in relation to that matter which was pending at the time of judgment. 5.21.1.5 However, the Supreme Court did not address the meaning of the term or modalities of the IEBC organising the fresh election under Article 140 of the Constitution. Moreover, the Court did not rule on whether a ‘run-off’ as contemplated under Article 138(5) of the Constitution was synonymous with a fresh election as contemplated by Article 140(3), seeing as the same term was used in both provisions. 5.21.1.6 Following the nullification of the 8 August 2017 presidential election, the Supreme Court was asked to rule on the meaning and effect of the term ‘fresh elections’ in the application by Dr Ekuru Aukot, seeking an interpretation of Article 140(3) of the Constitution. The Supreme Court ruled that constitutional interpretation was a matter reserved for the jurisdiction of the High Court under Article 165(3)(d) of the Constitution and save for the instances set out in Articles 163(3) and (6) of the Constitution, the Supreme Court did not have the mandate of interpretation of the Constitution. Having formed the view that the matter ought to have been filed in the High Court, the Supreme Court struck out the application. The first Interested Party, therefore, filed a petition raising this issue before the High Court in Ekuru Aukot v IEBC & 3 Others, High Court Petition 471 of 2017. 5.21.1.7 The High Court in Ekuru Aukot v IEBC & 3 Others, High Court Petition 471 of 2017, began by interpreting the meaning of a ‘fresh election’ and considering whether Article 140 of the BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION