the subsisting election law and that there were mishaps that prevented a
majority from electing a preferred candidate.
[117] Lastly on remedies, the Hon. Attorney General submitted that while
Article 140 requires the Court to declare the election valid or invalid, no
other reliefs are provided for. However, he urged that Article 163(8)
mandates the Supreme Court to make rules to exercise its jurisdiction. In
this regard, he submitted that the Supreme Court (Presidential Election
Petition) Rules, 2017 set out the powers of the Court i.e dismissing the
petition; declaring the election of the president-elect to be valid or invalid;
or invalidating the declaration made by IEBC.
[118] He submitted further that considering that Article 140(3) of the
Constitution provides for only two reliefs, declaration of validity or
invalidity of presidential election results, the court has to issue
reliefs/remedies within the confines of Article 140. The reliefs must be
confined within the parameters of the law. He cited the case of Samuel
Kamau Macharia & Another v. Kenya Commercial Bank
Limited & 2 Others38 and the 2013 Raila Odinga case in urging the
Court to be cautious of its jurisdictional limits. And thus submitted that the
Court’s final remedy is restricted to a declaration of validity or invalidity,
which they can only affirm or annul.
[119] Finally he urged that incidental to the final Order, the Court has
inherent power to order for scrutiny of votes in order to determine the
integrity and credibility of an electoral process as it suo motu invoked and
38
Samuel
Kamau Macharia & another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR.
Presidential
Petition
No.
1
of
2017
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