171 High Court Petition 548 of 2017. This was because it gave clarity on the lacuna with respect to a fresh presidential election. 5.21.2.5 In John Harun Mwau & 2 Others v IEBC & 2 Others, Supreme Court Petition 2 & 4 of 2017, the Supreme Court delved deeper into the question of whether fresh nominations were required following an invalidation of a presidential election result, as it was argued that section 14 of the Elections Act required nominations before all presidential elections. Upon scrutiny of section 14 of the Elections Act, the apex Court found that of the five instances when presidential elections were required to be held, a closer scrutiny revealed that elections were only required to be held in three instances: in case of a general election, where no candidate had met the threshold for election under Article 138(5) of the Constitution, and in cases when a vacancy had arisen in the office of the President. Since an Article 140(3) election was anchored on an ‘initial’ election, which was not the subject of contest in the petition nullifying the election, it would be illogical to compel candidates to take part in a fresh nomination process when the process had not been in issue, or to allow persons who had not been candidates in the initial election to contest the repeat election. A purposive interpretation, predicated upon the Constitution’s intent of assuring an unbroken governance process, led to the conclusion that the nominations held in respect of the initial election remained valid. However, where the election is nullified on the basis of flawed nominations, the ensuing fresh election could not be founded on the flawed nomination and fresh nominations would in such circumstances be required. 5.21.2.6 The apex Court further asserted that the decision in Aukot did not limit candidature to those who contested the election outcome, but it was open to every person who participated in the initial election to participate in the fresh election. 5.21.3 Effect of withdrawal of a candidate before the fresh election 5.21.3.1 Regulation 52 of the Elections (General) Regulations, 2012 allows a nominated candidate to withdraw his or her candidature before the election by filling out a notice vide Form 24A and delivering it to the Returning Officer no later than three days after nomination. The Election Laws (Amendment), 2017 also introduced section 86A(3), which provides that an eligible candidate may withdraw from the election by notice in writing to the IEBC, and where there were more than two remaining candidates, the election would proceed as scheduled. However, if only one candidate remained after withdrawal, they would be declared elected without any election being held. Seeing as the amended law came into effect on 2 November 2017, whereas the fresh election had been conducted on 26 October 2017, the Supreme Court ruled in John Harun Mwau & 2 Others v IEBC & 2 Others, Supreme Court Petition 2 & 4 of 2017 that section 86A was not applicable to the fresh election in 2017. 5.21.3.2 In John Harun Mwau & 2 Others v IEBC & 2 Others, Supreme Court Petition 2 & 4 of 2017, the apex Court was asked to determine whether the IEBC had erred in retaining the name of Raila Odinga on the ballot after he had issued a letter on 10 October 2017 withdrawing his candidature. The candidate had neither filled the prescribed Form 24A, nor had he tendered his notice of withdrawal from the presidential race within three days of his nomination. Conversely, it was asserted that Regulation 52 was not applicable to a fresh election under Article 140(3) since no nomination was required. 5.21.3.3 In making reference to para 290 of the 2013 Raila Odinga judgement, where the Court had asserted that if a candidate withdrew from the fresh election or died before the scheduled date a fresh nomination would be required, the apex Court ruled that this finding was per incuriam. This was because Article 138(8)(b) of the Constitution only contemplated three scenarios when BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION