ground of irregularities. Where however, it is shown
that the irregularities were of such magnitude that
they affected the election result, then such an election
stands to be invalidated. Otherwise, procedural or
administrative irregularities and other errors
occasioned by human imperfection, are not enough,
by and of themselves, to vitiate an election…Where an
election is conducted in such a manner as
demonstrably violates the principles of the
Constitution and the law, such an election stands to be
invalidated.”[Emphasis added.]
[209] Therefore, while we agree with the two Lord Justices in the
Morgan v. Simpson case that the two limbs should be applied
disjunctively, we would, on our part, not take Lord Stephenson’s route that
even trivial breaches of the law should void an election. That is not realistic.
It is a global truism that no conduct of any election can be perfect. We will
also go a step further and add that even though the word “substantially” is
not in our section, we would infer it in the words “if it appears” in that
section. That expression in our view requires that, before vitiating it, the
court should, looking at the conduct of the whole election, be satisfied that
it substantially breached the principles in the Constitution, the Elections
Act and other electoral law. To be voided under the first limb, the election
should be what Lord Stephenson called “a sham or travesty of an election”
or what Prof. Ekirikubinza refers to as “a spurious imitation of what
elections should be.
[210] Contrary to the submissions for the Law Society of Kenya, we
entertain no doubt whatsoever that Section 83 of the Elections Act applies
to the presidential election petitions as it does to all other election disputes.
As stated, guided by the principles in Articles 10, 38, 81 and 86 as well as
Presidential
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2017
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