2017. And whereas a scrutiny of rejected and spoilt votes as was sought in
prayer (c) was not specifically done, we have elsewhere above substantively
addressed the legal regime on that issue and we do not need to repeat
ourselves. However for clarity, and in addressing prayer (d), as we have
already stated, it is our firm finding that the decision in the 2013 Raila
Odinga case on rejected and spoilt votes remains good law and we see no
reason to depart from it. Prayer (d) is therefore disallowed.
[383] Prayer (g) has been addressed in the analysis and determination of
Issues Nos.(ii) and (iii) and it is our finding therefore that non-compliance
with the constitutional and legal principles in inter alia Articles 10, 38, 81
and 86 of the Constitution and the Elections Act coupled with the
irregularities and illegalities cited above, affected the process leading to the
declaration of the 3rd respondent as President elect in a very substantial and
significant manner that whatever the eventual results in terms of votes, the
said declaration was null and void and the election was rendered invalid.
Prayer (g) is therefore allowed.
[384] Regarding prayer (h), the evidence before us cannot lead to a certain
and firm decision regarding the specific number of votes affected by the
irregularities and illegalities and it is our position that a concise reading of
Section 83 of the Elections Act would show that the results of the election
need not be an issue where the principles of the Constitution and electoral
law have been violated in the manner that we have shown above. Prayer (h)
to the extent that it refers to votes to be struck off cannot therefore be
allowed.
[385] Regarding prayer (i), we have shown beyond peradventure that the
presidential election held on 8th August 2017 was not conducted in
Presidential
Petition
No.
1
of
2017
168
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P a g e
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