164 decision in IEBC v Maina Kiai & 5 Others, Civil Appeal No. 105 of 2017 would guide the IEBC in respect of voter identification. 5.18.1 The Maina Kiai Petition 5.18.1.1 Following the enactment of the above amendment, Maina Kiai & 2 Others v IEBC & 2 Others, Petition No 207 of 2016, was filed. The petition challenged section 39(2) and (3) of the Elections Act and Regulations 83(2), 84(1) and 87(2) of the Elections (General Regulations, 2012. 5.18.1.2 The impugned Regulations provided that the presidential results declared at a constituency level were subject to confirmation by the IEBC after a tally of all the votes cast; and that at the time of their transmission, they were provisional results. The petition was heard by a 3-judge bench of the High Court and allowed. The High Court then declared that the IEBC had no powers to audit, rectify, or in any way interfere, with an election result once it was declared by the Constituency Returning Officer. The Court annulled section 39(2) and (3) of the Elections Act and Regulations 83(2) and 87(2) of the Elections (General) Regulations, 2012. In so doing the Court affirmed the principle of finality of election results. 5.18.1.3 The decision of the High Court was appealed by the IEBC to the Court of Appeal in IEBC v Maina Kiai & 5 Others, Civil Appeal No. 105 of 2017. A 5-judge bench of the Court of Appeal dismissed the appeal and affirmed the High Court’s judgment. In so doing, the Court of Appeal decreed that the polling station was the ‘true locus for the free exercise of the voters’ will.’ 5.18.1.4 Another issue that arose, albeit, in obiter, at the hearing of the appeal, was the IEBC’s passage of the Elections (General) (Amendment) Regulations, 2017 while it pursued the Appeal against the High Court judgment. On the matter, the Court of Appeal opined that: We now turn our attention to amendments to the Regulations, which we alluded to earlier. It will be recalled that the High Court annulled Section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) on 7th April, 2017. One would have expected the concerned institutions, including the appellant, to either comply with the determination of the court or if aggrieved, to challenge it in this Court as the appellant did within two weeks on 24th April 2017. Instead, 14 days following the delivery of the judgment impugned in this appeal, the appellant issued a gazette supplement, being Legal Notice No. 72 of 21st April, 2017, making drastic amendments to the Elections (General) Regulations 2012, whose effect was clearly to render impotent and circumvent the declaration by the High Court of the inconsistency with the Constitution of section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) … The controversial regulations 83(2) and 87(2) were not affected by the amendments, and the object is not difficult to see. The High Court having found those regulations to be inconsistent with the Constitution, it was in bad faith for the appellant to re-enact them while pursuing this appeal. It is our firm position that the purpose for which section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) were promulgated or made have the effect of infringing constitutional principles of transparency, impartiality, neutrality, efficiency, accuracy and accountability. 5.18.2 Raila Odinga & Another v IEBC & Others, Supreme Court Presidential Petition 1 of 2017 5.18.2.1 After the 2017 general election, a presidential election petition was filed by presidential candidate, Raila Odinga, disputing the declared results. Once more, the issue of transmission of the election results featured heavily. The Supreme Court faulted the IEBC for failing to comply with section 39(1C) of the Elections Act, by which, the IEBC was under an obligation to scan the results declaration forms at the polling station (Forms 34A) and transmit them to the BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION