words used ordinarily bear. 97 Ours being a Constitutional System, the
interpretation of our statutes must also be harmonized with the values and
principles in our Constitution. The wording of Section 83 of the Elections
Act is clear and unambiguous. The words of the section must therefore be
given their natural and ordinary meaning.
[203] Guided by these principles, and given the use of the word “or” in
Section 83 of the Elections Act as well as some of our previous decisions98,
we cannot see how we can conjunctively apply the two limbs of that section
and demand that to succeed, a petitioner must not only prove that the
conduct of the election violated the principles in our Constitution as well as
other written law on elections
but that he must also prove that the
irregularities or illegalities complained of affected the result of the election
as counsel for the respondents assert. In our view, such an approach would
be tantamount to a misreading of the provision.
[204] Even in the English Court of Appeal decision in Morgan v.
Simpson99, which has extensively been cited and applied in many cases in
this country, both Lords Denning and Stephenson were of the clear view
that notwithstanding the use of the word “and” instead of the word “or” in
their provision, the two limbs of the section should be applied disjunctively.
In his words, Lord Denning asserted:
1. If the election was conducted so badly that it was
not substantially in accordance with the law as to
97 Halsbury’s Laws of England (3rd Ed) Para 582; Craies on Statute Law (6th Edn.), Sweet & Maxwell
(1963) p. 66.
98 See decision of Maraga, J (as he then was) Hassan Ali Joho v. Hotham Nyange and Another (2008)
3KLR (EP) 500 at page 512.
99 Morgan v. Simpson [1974] 3 ALL ER 722.
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Petition
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2017
83
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