135 Act (George Aladwa Omwera v Benson Mutura Kang’ara & 2 Others, Nairobi High Court Petition 4 of 2013; Abdinasir Yasin Ahmed & 2 Others v Ahmed Ibrahim Abass & 2 Others, Garissa High Court Petition 9 of 2013) 4.8.3.3.15 Following amendments to the law in 2016 vide section 21 of the Election Laws (Amendment) Act 36 of 2016, several changes were introduced to section 87. Firstly, it is no longer mandatory to make a report concerning electoral malpractices of a criminal nature, the court only puts forward an opinion as to whether an election offence ‘may have occurred’ (section 87(1) of the Elections Act, 2011) and transmits it to the DPP. Such reports were made in Mohamed Mahamud Ali v IEBC & 2 Others, Mombasa High Court Election Petition No.7 of 2017; Clement Kungu Waibara v Annie Wanjiku Kibeh & Another, Kiambu Election Petition 1 of 2017; Timamy Issa Abdalla v IEBC & 3 Others, Malindi High Court Election Petition 3 of 2017; Arthur Papa v Oku Edward Kaunya & 2 Others, Busia High Court Election Petition 2 of 2017; and Julius Makau Malombe v Charity Kaluki Ngilu & 2 Others, Machakos Election Petition 4 of 2017. 4.8.3.3.16 As such, an election court should exercise caution and circumspection in determining the validity of an election, bearing in mind that there is a further process contemplated by law to determine whether a person is guilty of an election offence (Julius Makau Malombe v Charity Kaluki Ngilu & 2 Others, Machakos Election Petition 4 of 2017; Bernard Kibor Kitur v Alfred Kiptoo Keter & IEBC, Eldoret High Court Election Petition 1 of 2017). 4.8.3.3.17 Secondly, section 87 read together with section 22 of the Election Offences Act 37, 2016 affirm prosecutorial discretion and, while the prosecutor is mandated to direct the conduct of an investigation, they make their own assessment as to whether to commence prosecution (s 87(3) Elections Act). 4.8.3.3.18 Thirdly, the prosecution of election offences is time-bound, with the DPP mandated to commence prosecution within a year of the election to which the offence relates, and where a section 87 report is made, proceedings must be commenced within twelve months of the date of the final judgment (s 22 Election Offences Act). 4.8.3.3.19 The phrase ‘may have occurred’ as used in section 87(1) of the Elections Act, 2011 suggests that the courts should use the civil standard of proof in determining whether such malpractices have affected the validity of an election. 4.8.3.3.20 It is also not necessary for the persons who are alleged to have committed electoral malpractices to be joined in the election petition. As asserted by Ngugi J in Clement Kungu Waibara v Annie Wanjiku Kibeh, Kiambu Election Petition 1 of 2017, at para 29: What this development means is that an election Court can no longer make a finding that a person has committed an election offence during the hearing of an election dispute. All that the Court can do is to refer a finding to the DPP for further investigations. This, in my view, lessens the need to have a party against whom the Court may ultimately find to have propagated an electoral malpractice which is criminal in nature to be a necessary party in the election Petition. 4.8.3.3.21 While, previously, the Supreme Court had ruled that the proof of an election offence against the successful candidate would automatically result in the nullification of the election, regardless of its impact on the result of the election (s 80(4)(b) of the Elections Act, 2011; Frederick Otieno Outa v Jared Odoyo Okello & 4 Others, Supreme Court Petition No. 6 of 2014; Karanja Kabage v Joseph Kiuna Kariambegu Ng’ang’a & 2 Others, Nairobi Civil Appeal No. 301 of 2013), it declined to nullify an election in Bernard Kibor Kitur v Alfred Keter & IEBC, Supreme BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION