132 Evidential Burden 4.8.3.2.5 The evidential burden of proof in EDR initially lies upon the party bearing the legal burden (i.e., the petitioner). The evidential burden, however, may shift, and often shifts, between the parties as the weight of evidence given by either side during the trial varies. In the case of Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Petition No. 1 of 2017, the Supreme Court held that: Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant throughout a trial” with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting” and “its position at any time is determined by answering the question as to who would lose if no further evidence were introduced. 4.8.3.2.6 Generally, the evidential burden will shift to the respondent once the petitioner proves sufficient evidence to warrant impugning an election, if not controverted (Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Petition No. 1 of 2017). 4.8.3.2.7 Although the burden of proof in EDR lies on the petitioner, an election court is not bound to decide an election petition only on the petitioner’s evidence (Ramadhan Seif Kajembe v Returning Officer, Jomvu Constituency & 3 Others, Mombasa Election Petition No. 10 of 2013). An election court must consider the totality of the evidence adduced by all the parties (Dickson Mwenda Kithinji v Gatirau Peter Munya & 2 Others, Nyeri Civil Appeal No. 38 of 2013). Exceptions on the burden of proof 4.8.3.2.8 Section 112 of the Evidence Act provides an exception to the general rule on burden of proof. Where a particular fact is specially within the knowledge of a party, the burden of proof rests on him. 4.8.3.2.9 However, this proposition, being an exception, does not discharge the petitioner from his/her burden of proving the petition. The Supreme Court, in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition 2B of 2014, cautioned against invoking section 112 of the Evidence Act without considering section 107 first. The Court held: The learned Judges of Appeal invoked the provisions of Section 112 of the Evidence Act to attribute the evidential burden to the 2nd respondent… Section 112 of the Evidence Act is not to be invoked without regard to the preceding sections, especially Section 107 (1) and (2) of the same Act… …Section 112 of the Evidence Act, on which the learned Judges of Appeal placed reliance, is an exception to the general rule in Section 107 of the same Act. Section 112 was not meant to relieve a suitor of the obligation to discharge the burden of proof. 4.8.3.3Standard of Proof 4.8.3.3.1 The High Court, in Hassan Mohamed Hassan & Another v IEBC & 2 Others, Garissa Election Petition No. 6 of 2013, understood ‘standard of proof’ in EDR as referring to the extent the Petitioner is to go to sufficiently persuade the election court to interfere with the election results declared in favour of the candidate who scored victory. The court further observed BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION