57 See also Karanja Kabage v Joseph Kiuna Kariambegu Nganga & 2 Others, Nakuru Election Petition No. 12 of 2013. For a somewhat different opinion, see Josiah Taraiya Kipelian Ole Kores v Dr. David Ole Nkedianye & 3 Others, Nairobi Election Petition No. 6 of 2013. 3.1.8 The second rationale for nullifying elections based on malpractices, errors or irregularities that occurred prior to the election date is that a contrary approach would encourage unscrupulous politicians to engage in electoral offences and malpractices prior to the election period. In John Okello Nagafwa v IEBC & 2 Others, Busia Election Petition No. 3 of 2013, the respondent urged the election court to ignore allegations of bribery because the alleged acts had taken place before the election and the official campaign period. The respondent further submitted that the petitioner ought to have referred the alleged acts of bribery to the IEBC in accordance with the prescribed pre-election dispute resolution procedures. The Court rejected the submission in the following words: What this Court must consider is whether as an election court it should censure a Respondent for electoral malpractice in the nature of bribery, treating, violence or undue influence which is committed prior to the election period…Under Article 81 of the Constitution an integral element of a free and fair election is that it is free from violence, intimidation, improper influence or corruption. Any act or conduct that subverts free and fair election affronts not only the Constitution but [also] electoral laws. The timing of the act and conduct may be immaterial as long as it has the effect of perverting the course of an election. Even if committed prior to the election period, that act or conduct will amount to an electoral malpractice as long as it remains operative and capable of subverting a free and fair election…Unscrupulous politicians should not be afforded the luxury of engaging in malpractices that are intended and capable of unlawfully influencing an impending election in the comfort that acts done are outside [the] election period and therefore outside the ambit of the Elections Act. There is therefore a basis for me to inquire as to whether there was bribery… 3.1.9 In the aftermath of the 2017 polls and election petitions, the Supreme Court had an opportunity to clarify the law on the election court’s mandate over pre-election disputes in three cases that turned on this issue. First, in Sammy Ndung’u Waity v IEBC & 3 Others, Supreme Court Petition 33 of 2018 the Court appreciated the ‘Divestiture’ and ‘Preservative’ Schools of thought. 3.1.10 In harmonizing the two schools of thought, the Supreme Court established the following principles to guide the Courts: a. All pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT as the case may be in the first instance. b. Where a pre-election dispute has been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165(3) and (6) of the Constitution, such dispute shall not be a ground in a petition to the election Court. c. Where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165(3) and (6) of the Constitution. The High Court shall hear and determine the dispute before the elections and in accordance with the Constitutional timelines. d. Where a person knew or ought to have known of the facts forming the basis of a BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION