75 were unpredictable and the period set out in the statute was impracticable. The Court held as follows: …the issue confronting me now is whether the apparent limitation of the right to enjoyment of political rights as set out in Section 43 (5) of the Elections Act, is reasonable and justifiable in the context of a by-election? I think not. I say so because as can be discerned from the provisions of Article 101 (4) of the Constitution, a byelection is conducted subject to a vacancy arising in circumstances contemplated under Article 103 of the Constitution. Taking those circumstances into account i.e. death, resignation, disqualification etc., it would be difficult to predict and foresee the possibility of a vacancy arising in Parliament or a County Assembly so that a public officer can prepare to contest in that by-election. Those circumstances are also uncertain. Despite the above uncertainties, the law as stipulated in Article 101 (4) (b) of the Constitution as stated elsewhere above, is clear that a by-election must be held within three months of a vacancy arising. How then can one say that seven months is reasonable and justifiable, when the period envisaged under Section 43 (5) is longer than that stipulated under Article 101(b) of the Constitution?...I do not see any justification for denying a public officer the right to contest a vacant seat in [a] by-election if he has resigned as soon as a vacancy has occurred and that is as soon as the Speaker of either House of Parliament has given notice of the vacancy to the IEBC under Article 101 (4) of the Constitution. To hold otherwise would be to promote an absurdity that was never intended by the drafters of the Constitution. 3.5.5.4 In Evans Gor Semelang’o v IEBC & Another, Nairobi High Court Constitutional Petition No. 358 of 2014, the Court explained the rationale for requiring public servants to resign or vacate office as a precondition for engaging in electoral politics in the following terms: …the intent behind these provisions was to lessen the considerable influence that public officers have historically yielded (sic) in public affairs which was deemed to give them an unfair advantage over others in the electoral context. While the section deals with resignation of a public officer, what must have been in contemplation was that a public officer would not vie for elective office until after six months from the date he or she ceased to hold public office, whether through resignation, retirement, expiration of a term of appointment or, as in the present case, revocation of appointment. 3.5.5.5 There are many justifications for requiring public servants to resign as a precondition for contesting elective offices, besides the need for political neutrality of the public service. These include the need to: i. prevent public officers from interfering with elections; ii. maintain the dignity of public office; and iii. prevent the deployment of public resources in election campaigns (Evans Gor Semelang’o v IEBC & Another, Nairobi High Court Constitutional Petition No. 358 of 2014). 3.5.5.6 The rationale for the requirement of public servants to resign as a precondition for seeking elective office lies in the need for political neutrality of the public service. Accordingly, the courts will not necessarily declare as unconstitutional statutory provisions requiring public servants to resign as a precondition for seeking elective office (Charles Omanga & Another v IEBC & Another, Nairobi High Court Constitutional Petition No. 2 of 2012). BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION