the authorities referred to above, we therefore disagree with the
respondents, the 2nd interested party as well as the Attorney General that
the two limbs in Section 83 of the Elections Act have to be given a
conjunctive interpretation.
[211] In our respectful view, the two limbs of Section 83 of the Elections
Act should be applied disjunctively. In the circumstances, a petitioner who
is able to satisfactorily prove either of the two limbs of the Section can void
an election. In other words, a petitioner who is able to prove that the
conduct of the election in question substantially violated the principles laid
down in our Constitution as well as other written law on elections, will on
that ground alone, void an election. He will also be able to void an election
if he is able to prove that although the election was conducted substantially
in accordance with the principles laid down in our Constitution as well as
other written law on elections, it was fraught with irregularities or
illegalities that affected the result of the election.
[212] Having analyzed the wording of Section 83 of the Elections Act,
bearing in mind its legislative history in Kenya and genesis from the Ballot
Act and also in light of the need to keep in tune with Kenya’s transformative
Constitution, it is clear to us that the correct interpretation of the Section is
one that ensures that elections are a true reflection of the will of the Kenyan
people. Such an election must be one that meets the constitutional
standards. An election such as the one at hand, has to be one that is both
quantitatively and qualitatively in accordance with the Constitution. It is
one where the winner of the presidential contest obtains “more than half of
all the votes cast in the election; and at least twenty-five per cent of the
votes cast in each of more than half of the counties” as stipulated in Article
Presidential
Petition
No.
1
of
2017
87
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P a g e