102 4.1.3 Applicability of Article 159(2)(d) of the Constitution 4.1.3.1 The jurisprudence of the election courts in 2013 was to the effect that the invocation of Article 159(2)(d) of the Constitution would not necessarily salvage an election petition, which does not comply with the requirements set out in Rule 8 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. In Amina Hassan Ahmed v Returning Officer Mandera County & 2 Others, Nairobi Election Petition No. 4 of 2013, the Court held as follows: …the provisions of Rule 10 and others aforestated [now Rule 8] are not mere technical requirements. If they are technical in so far as they are procedural and spell out the form and content of intended petitions, they nevertheless, at the same time, are substantive and go to the root and substance of issues and matters prescribed upon… in the circumstances and for the reasons discussed above, the Petitioner’s application seeking amendment…is hereby refused and dismissed...The end result is that the said petition must be and is hereby struck out, with costs to the Respondents. 4.1.3.2 However, the Supreme Court in Hon. Lemanken Aramat v Harun Meitamei Lempaka & 2 Others, Petition 5 of 2014, held: A Court dealing with a question of procedure, where jurisdiction is not expressly limited in scope – as in the case of Articles 87(2) and 105(1) (a) of the Constitution – may exercise a discretion to ensure that any procedural failing that lends itself to cure under Article 159, is cured. We agree with learned counsel that certain procedural shortfalls may not have a bearing on the judicial power (jurisdiction) to consider a particular matter. In most cases procedural shortcomings will only affect the competence of the cause before a Court, without in any way affecting that Court’s jurisdiction to entertain it. A Court so placed, taking into account the relevant facts and circumstances, may cure such a defect; and the Constitution requires such an exercise of discretion in matters of a technical character. 4.1.3.3 As a result, the court may invoke Article 159(2) and exercise discretion in order to ensure the administration of justice and excuse procedural technicalities that may hamper administration of justice. This discretion to excuse non-compliance with the rules depends on the weight given to the level of non-compliance, on a case-to-case basis. The test is whether the infraction would cause injustice on the other party or give the non-compliant party an unfair advantage, or if the non-compliance is curable or goes to the root of the petition. 4.1.3.4 The rationale for the discretion lies in the constitutional and statutory objective of administering electoral justice without undue regard to technicalities of procedure (Article 159(2)(d) of the Constitution; s 80(1)(d) of the Elections Act, 2011; Rule 4(1) of the Elections (Parliamentary and County Elections) Petition Rules, 2017; Dickson Mwenda Kithinji v Gatirau Peter Munya & 2 Others, Nyeri Civil Appeal No. 38 of 2013; and Nuh Nassir Abdi v Ali Wario & 2 Others, Mombasa Election Petition No. 6 of 2013). 4.1.3.5 Although the courts have the power to strike out an election petition for non-compliance with Rule 8 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, the general judicial view is that the summary dismissal of cases is a drastic and draconian step, to be taken sparingly and only in the clearest of cases where the defect is incurable (D.T. Dobie & Company (Kenya) Limited v Muchina [1982] KLR 1). 4.1.3.6 Indeed, election courts have discretion, pursuant to Article 159(2)(d) of the Constitution, to excuse minor or trivial deviations from the above and other mandatory requirements (Hosea Mundui Kiplagat v Sammy Komen Mwaita & 2 Others, Nairobi Election Petition No. 11 of 2013). In Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013, the Supreme Court held that: BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION