133 that section 83 of the Elections Act, 2011 lays down the standard of proof required in election petitions in Kenya. 4.8.3.3.2 Section 83(1) stipulates: A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and b) the non-compliance did not substantially affect the result of the election. 4.8.3.3.3 Section 83(2) provide that: Pursuant to section 72 of the Interpretation and General Provisions Act (Cap. 2), a form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead. 4.8.3.3.4 The above provisions were enacted in 2017, vide the Election Laws (Amendment) Act No. 34 of 2017, with the effect that the previous disjunctive ‘section 83 test’ was purported to be replaced with a conjunctive test thus requiring petitioners to prove both limbs, i.e., that the election was conducted in violation of the Constitution and written law and that noncompliance with the law affected the result of the elections. 4.8.3.3.5 The Amendment was declared unconstitutional in Katiba Institute & 3 Others v Attorney General & 2 Others, Nairobi Petition No 548 of 2017. The High Court held: [t]here was no constitutional compulsion or rational (sic) in amending section 83 of the Act to remove the disjunctive word ‘or’ and introduce the conjunctive word ‘and’ so that only where there are failures in complying with the constitution and election laws and they substantially affected the results should an election be annulled. Removing the twin test for annulling faulty election results negates the principles of electoral system in the Constitution. And allowing such an amendment would be to ignore constitutional principles in our transformative Constitution that there should be free, fair, transparent and accountable elections. 4.8.3.3.6 No legislative amendment was introduced to align section 83 with the decision of the Court, nor was an appeal preferred against the decision of the Court. Reference may, therefore, be made to similar situations where an amendment was declared unconstitutional to ascertain the effect of the declaration of unconstitutionality. 4.8.3.3.7 In Senate & 2 Others v Council of County Governors & Others, Petition 25 of 2019 [2022] KSC 7 KLR, where the amendment to section 91(f) of the County Governments Act was declared unconstitutional, the Supreme Court ruled that the effect of the declaration of unconstitutionality was to restore the previously worded section 91(f) of the County Governments Act (para 14). Similarly, in the case of Attorney-General & 2 Others v David Ndii & 79 Others, Supreme Court Petition 12 of 2021 (consolidated with petitions 11 and 13 of 2021), the Supreme Court addressed the issue of the quorum of the IEBC in light of the amendments to paragraph 5 of the Second Schedule to the IEBC Act, which were also declared unconstitutional in the Katiba case. The majority of judges endorsed the position taken in the Senate case that the effect of an amendment being declared unconstitutional is to restore the status quo before the amendment. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION