166 viii. Provisional results were done away with and the IEBC obligated to announce the final results in the order in which they were tallied. 5.18.3.3 Section 44, on the other hand, was amended, in part, by establishing a complementary system for identification of voters. One that is simple, accurate, verifiable, secure. accountable and transparent. 5.18.3.4 The amendment to section 39(1C) of the Elections Act did away with the requirement for result transmission, to the constituency and national tallying centres, in the required form. In addition, the amendment required the verification of the electronically transmitted results as against the physical result declarations and in the event of a contradiction, the results that reflected the accurate results of the election at the polling station would prevail. 5.18.3.5 Before the fresh election decreed by the Supreme Court following the nullification of the 2017 presidential election was conducted, two election petitions were lodged by John Harun Mwau (Petition 2 of 2017), and Njonjo Mue and Khelef Khalifa (Petition 4 of 2017) in the other. One of the issues that arose was whether the 2017 Amendment (Election Laws (Amendment) Act, 2017) would govern the fresh election. 5.18.3.6 The Supreme Court held that the applicable law was the Elections Act, 2011 as it existed prior to the said amendment, which had not come into effect as at the time of the election. The Supreme Court resisted the invitation to declare the amended section 83 of the Elections Act unconstitutional, leaving it to the High Court which, as at the time of the decision, was seized of the case of Katiba Institute & 3 Others v Attorney General & 2 Others (Nairobi Petition No 548 of 2017), seeking to declare the Election Laws (Amendment) Act, 2017 unconstitutional (For a somewhat different reasoning on the applicability and constitutionality of the amended section 83, see the concurring opinion of Njoki Ndungu SCJ). 5.18.4 Katiba Institute & 3 Others v Attorney General & 2 Others Nairobi Petition 548 of 2017 5.18.4.1 The petitioners challenged the Election Laws (Amendment) Act, 2017 claiming that it was vague and unconstitutional. Some of the grounds raised by the petitioner were that the amendment to sections 39 and 83 of the Elections Act were inconsistent with the 2010 Constitution and contrary to the electoral principles enshrined therein. 5.18.4.2 The High Court, in determining the petition, considered the impact of the Amendment Act, as against the provisions of the Constitution and interpretations made by the Supreme Court in the 2017 Raila Odinga case. It then found that some of the amended provisions were unconstitutional for violating Articles 81 and 86 of the Constitution. The provisions declared unconstitutional were sections 39(1C)(a), 39(1D), 39(1E), 39(1F), 39(1G) and the entire amendment to section 83 of the Elections Act. 5.18.4.3 Section 39(1C) of the Elections Act, which had proposed to remove the requirement for results to be transmitted using a prescribed form and stated that where there was an inconsistency between physically transmitted results and electronically transmitted ones, the IEBC would determine which results were an accurate reflection of the results as declared at the polling station and that these would prevail, did not accord with the constitutional principles of verifiability, transparency and accountability of election results. Accordingly, the Court opined at para 82 that: The problem in so far as I can see, is with regard to transmission of results from the polling stations to the constituency and national tallying centres as required by the new section 39(1C) (a). First, there is no requirement for the results to be transmitted in any BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION