17 reflection of the will of the Kenyan people. Such an election must be one that meets the constitutional standards. An election such as the one at hand, has to be one that is both quantitatively and qualitatively in accordance with the Constitution. It is one where the winner of the presidential contest obtains “more than half of all the votes cast in the election; and at least twenty-five per cent of the votes cast in each of more than half of the counties” as stipulated in Article 138(4) of the Constitution. In addition, the election which gives rise to this result must be held in accordance with the principles of a free and fair elections, which are by secret ballot; free from intimidation; improper influence, or corruption; and administered by an independent body in an impartial, neutral, efficient, accurate and accountable manner as stipulated in Article 81. Besides the principles in the Constitution which we have enumerated that govern elections, Section 83 of the Elections Act requires that elections be “conducted in accordance with the principles laid down in that written law.” The most important written law on elections is of course the Elections Act itself. That is not all. Under Article 86 of the Constitution, IEBC is obliged to ensure, inter alia, that: “Whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent; the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station; the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials. 1.9.9.4 Having evaluated these principles, the Court reached the following conclusion: …it is our finding therefore that non-compliance with the constitutional and legal principles in inter alia Articles 10, 38, 81 and 86 of the Constitution and the Elections Act coupled with the irregularities and illegalities cited above, affected the process leading to the declaration of the 3rd respondent as President elect in a very substantial and significant manner that whatever the eventual results in terms of votes, the said declaration was null and void and the election was rendered invalid. 1.9.9.5 Lastly, Article 159(2) of the Constitution requires the courts to administer justice in a manner that promotes and protects the purpose and principles of the Constitution, and without undue regard to legal and procedural technicalities. 1.9.9.6 A sound appreciation of Article 159(2) of the Constitution is a sine qua non for effective EDR, especially in view of the country’s historical legacy of obsession with legal and procedural technicalities and the resultant electoral injustices. In Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others, Nairobi Civil Appeal No. 228 of 2013, the Court of Appeal explained the interplay between rules of procedure and substantive justice as follows: the relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress…the court should not be too far bound and tied by the rules, which are intended as general rules of practice, as to be compelled to do that which will cause injustice in a particular case…Essentially, the rules remain subservient to the Constitution and statutes. Article 159 (2) (d) of the Constitution, Section 14 (6) of the Supreme Court Act, Section 3A and 3B of the Appellate Jurisdiction Act, Sections 1A and 1B of the Civil Procedure Act and Section 80 (1) (d) of the Elections Act, 2011 place heavy premium on substantive justice as opposed to undue regard to procedural technicalities. A look at recent judicial pronouncements from all the three levels of court structure leaves no doubt that the courts today abhor technicalities in the dispensation of justice. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION