[182] The Law Society of Kenya (LSK) as amicus curiae emphasized the
centrality of a voter in a democratic government and urged that in
interpreting the meaning and scope of Section 83, this Court should
consider its history and meaning, its interpretation in the 2013 Raila
Odinga case as well as its constitutionality.
[183] Mr. Mwenesi, learned Counsel for LSK urged that Section 83 was not
straightforward and posed difficulties in judicial interpretation as to what
an administrative irregularity which can invalidate an election constitutes.
Further, that in interpreting that section in the 2013 Raila Odinga case,
this Court laid out a broad test which is whether an alleged breach of law
negates or distorts the expression of the people’s electoral intent. Counsel
contended that from the court’s interpretation, breach of the law however
grave is not by itself sufficient to invalidate an election, where it is not
shown that the breach negated the voters’ intent.
[184] The LSK argued that the application of Section 83 is limited in
content and scope and only applies where the validity of an election is
restricted to irregularities. According to LSK, Section 83 has no application
where there is violation of the Constitution or substantive provision of
elections laws and Regulations. It was urged, that Section 83 is only
applicable where there are minor irregularities which do not affect the
overall outcome of the election. It is the submission of LSK that giving the
provision a different meaning leads to an absurdity.
[185] The Attorney General submitted that the threshold required to
disturb an election is one where evidence discloses profound irregularities
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