(ix) Possible Reliefs: A “Fresh Election?”
[286] The Attorney-General, as amicus curiae, invited the Court to give directions on a line of relief declared by the Constitution, depending on the finding on merits. Article 138(5) of the Constitution stipulates that if after the hearing of the Petition, the Court finds no candidate to have been duly elected, “a fresh election shall be held within thirty days after the previous election and in that fresh election the only candidates shall be –
(a) the candidate, or the candidates, who received the greatest number of votes; and
(b) the candidate, or the candidates, who received the second greatest number of votes.”
[287] The expression “a fresh election” appears also in Article 140(3), which thus provides:
“If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.”
As the phrase “fresh election,” as used in Article 140(3), does not tally with its application in Article 138(2) and (3), the amicus curiae sought the Court’s answer to the following question: “Does the fresh election anticipated by Article 140(3) mean an entirely new Presidential election (including the nomination process), or does [it] mean a similar election as that anticipated under Article 138(5) and (7) – with the same candidates as in the earlier poll?”
[288] Article 138(4) provides that a candidate shall be declared elected if the candidate receives: (a) more than half of all the votes cast in the election; and (b) at least 25% of the votes cast in each of more than half of the counties. Article 138(5) provides that if no candidate is elected, a fresh election shall be held within 30 days following the previous election, and in this later election the candidates shall be: (a) the candidate, or the candidates, who received the greatest number of votes; and (b) the candidate, or the candidates, who received the second greatest number of votes. Article 138 (6) provides that if more than one candidate receives the greatest number of votes, then Article 138(5)(b) shall not apply and the only candidates in the fresh election shall be those contemplated in Article 138(5)(a). Article 138(7) provides that the candidate who receives the most votes in the fresh election shall be declared elected as President.
[289] It is clear that a fresh election under Article 140(3) is triggered by the invalidation of the election of the declared President-elect, by the Supreme Court, following a successful petition against such election. Since such a fresh election is built on the foundations of the invalidated election, it can, in our opinion, only involve candidates who participated in the original election. In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest.
[290] Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138(1) (b) would become applicable, with fresh nominations ensuing.
[291] Barring the foregoing scenario, does the “fresh election” contemplated under Article 140(3) bear the same meaning as the one contemplated under Article 138(5) and (7)? The answer depends on the nature of the petition that invalidated the original election. If the petitioner was only one of the candidates, and who had taken the second position in vote-tally to the President-elect, then the “fresh election” will, in law, be confined to the petitioner and the President-elect. And all the remaining candidates who did not contest the election of the President-elect, will be assumed to have either conceded defeat, or acquiesced in the results as declared by IEBC; and such candidates may not participate in the “fresh election.”
[292] Such, indeed, is the situation in the instant case. It follows that if this Court should invalidate the election of the 3rd and 4th Respondents, only the 1st Petitioner would participate as a contestant in the “fresh election” against the President-elect. And the candidate who receives the most votes in the fresh election would be declared elected as President.
[293] But suppose a successful petition challenging the President-elect were filed by more than one candidate who had participated in the original election. The only candidates in the fresh election, in such a case, in our opinion, would be the petitioners as well as the declared President-elect whose election had been annulled.
[294] Suppose further, that the election of a declared President-elect is annulled following the petition of a person who was not a candidate in the original election. In such a case, in our opinion, each of the Presidential-election candidates in the original election would be entitled to participate in the “fresh election” – and no fresh nominations would be required.

Nice no okuyu to buy land till beyond .…...