petitioner, but made it almost impossible for an election to be successfully
challenged in a court of law.
[174] It was submitted for the petitioners that the conjunctive and narrow
interpretation of Section 83 of the Elections Act that this Court gave the
Section in the 2013 Raila Odinga case undermines the supremacy of the
Constitution under Article 2 of the Constitution and suggests that an act
can remain valid despite its transgression of the Constitution so long as it
does not affect the result. It was submitted that the correct interpretation of
the Section is the disjunctive one, the English Court of Appeal gave the
English equivalent in Morgan v. Simpson85 which has been followed in
many cases in this country including Hassan Ali Joho v. Hotham
Nyange & Another86, Moses Masika Wetangula v. Musikari Nazi
Kombo 87 and Abdikhaim Osman Mohammed v. Independent
Electoral and Boundaries Commission88.
[175] The petitioners further urged the Court to adopt a purposive and
progressive interpretation of Section 83 to give effect to the spirit and letter
of the law. It was submitted that the essence of Section 83 was that for
elections to be valid, they must comply with the ‘principles laid down in the
Constitution’, written law and Regulations. The constitutional principles
are established in Articles 38, 81 and 86 of the Constitution. Article 81(e)
has established principles of free and fair elections, which principles have
been elevated to the status of fundamental rights under Article 38 of the
Constitution. Article 86 focuses on system of election, and that most
Morgan v Simpson [1974]3 All ER 722 at p. 728.
Hassan Ali Joho v. Hotham Nyange & Another [2008] 3KLR (EP) 500.
87 Moses Masika Wetangula v. Musikari Nazi Kombo, Civil Appeal No. 43 of 2013; [2014] eKLR.
88 Abdikhaim Osman Mohammed v. Independent Electoral and Boundaries Commission [2014] eKLR.
85
86
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