172 an election could be cancelled: where no person had been nominated before the expiry of the period set for delivery of nominations, where a candidate for election as President or Deputy President died before the scheduled election date, or where a candidate who would have been entitled to be declared as President died before being declared elected as President. Withdrawal of a candidate was not one of the scenarios contemplated by Article 138(8)(b) as a basis for cancellation of an election. It was, therefore, open to the Court to depart from the 2013 decision. 5.21.3.4 The Supreme Court thus found that since Regulation 52 required withdrawal within three days of a nomination, it was not applicable to a fresh election under Article 140(3) of the Constitution. Consequently, the writing of a formal letter by a candidate constituted a substantive and legally effective withdrawal from the elections. Nevertheless, the IEBC could not be faulted for retaining Raila Odinga’s name on the ballot paper since the withdrawal could not in any case have led to the cancellation of the election. Moreover, seeing as a candidate could withdraw at any time before the election, it would not always be possible for the IEBC to remove the name of a candidate who withdraws from the ballot paper. 5.21.4 Failure to conduct presidential election in every constituency 5.21.4.1 Due to the violence experienced in some regions with threats meted out against IEBC officials conducting the fresh election, 25 constituencies did not participate in the fresh election, giving rise to the challenge in John Harun Mwau & 2 Others v IEBC & 2 Others, Supreme Court Petition 2 & 4 of 2017. 5.21.4.2 The Court was asked to find that the repeat election did not comply with Article 138(2) of the Constitution, which requires a presidential election to be conducted in every constituency. The petitioners submitted that, irrespective of the source of the violence, the occurrence of violence itself was enough to vitiate an election as Article 138(2) requires that the presidential election be held in every constituency. The 1st and 2nd respondents, on the other hand, cited section 55B of the Elections Act as the legislative authority for postponing elections in the 25 constituencies since the provision allows postponement where it is impossible to hold the same for, among other reasons, a likelihood of a breach of the peace. Regulation 87 of the Elections (General) Regulations, 2012 also gives the IEBC discretion to declare the presidential election result without results from certain constituencies where it is certain that the result will not be affected by the omission. 5.21.4.3 In finding that the declaration of the election result without the participation of the 25 constituencies was, nevertheless, in accordance with the Constitution, the Supreme Court ruled: [315] The terms of Article 81(e) (ii) of the Constitution, read in proper context, must be understood to mean that no person, candidate, political party, party agent or supporter, or State agency is to resort to acts of violence, intimidation, improper influence or corruption, to defeat the will of the people exercising their democratic rights to vote. The said provision cannot be read as sanctioning or lending legitimacy to acts of violence and intimidation, to achieve the invalidation of an election. If we were to hold otherwise, the authority of the Constitution would be surrendered to cynical acts of violence: all that one would need to do, is to instigate violence in any corner of the Republic during a Presidential election, and thereafter petition this Court to nullify the election. Those who intentionally instigate and perpetrate violence must not plead the same violence as a ground for nullifying an election… BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION