The debate on Rejected Votes may not even be a factor depending on the margin between Number 1 and 2. But it is obviously a valid matter for the Supreme Court to adjudicate on given there are logical arguments for and against. However, candidates may have to weigh the benefit of going to court versus concentrating on campaigns for the runoff.

There is the letter and spirit of the constitution that need to be considered. If the Senator ballot found in the presidential box shows that the voter was inclined towards a CORD senator he surely could not have intended to vote for a Jubilee president?

I say it is unfair not to consider his intentions and his inclinations.

REJECTED VOTES - The Law

Article 82 (1) (d) of the constitution of Kenya, Parliament has enacted laws to provide for the conduct of elections. These are the Elections Act 2011 and the Elections General Regulations 2012.

WHAT THE LAW STATES
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Section 109 (1) (p) of the Elections Act 2011 states that the IEBC may:

“prescribe the procedure to be followed in the counting of votes and the circumstances in which votes may be rejected by a returning officers as being invalid”

REASONS TO REJECT A BALLOT PAPER
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Regulation 77 (1) of the Elections General Regulations 2012, sets out the conditions under which a ballot paper may be rejected and states that:

“Any ballot paper—

(a) which does not bear the security features determined by the Commission;

(b) on which votes are marked, or appears to be marked against the names of, more than one candidate;

(c) on which anything is written or so marked as to be uncertain for whom the vote has been cast;

(d) which bears a serial number different from the serial number of the respective polling station and which cannot be verified from the counterfoil of ballot papers used at that polling station; or

(e) is unmarked,

shall, subject to subregulation (2), be void and shall not be counted.”

Sub-regulation 2, for the avoidance of doubt, states that the presiding officer may uphold a ballot paper if the intention of the voter can be clearly discerned.

The regulations also state that the determination of whether a ballot paper is valid or rejected is at the discretion of the presiding officer and is made at the point of counting of ballots.

It follows, therefore, that a declaration by the presiding officer that a ballot is rejected, is tantamount to a statutory declaration that the ballot is invalid and void for the purpose of the election.

HUMAN RIGHT/INTENT - "All Votes Cast"
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Concerning the constitutional provision being relied on to count “all the votes” cast,

Article 138 (4) (a) states:

“A candidate shall be declared elected as President if the candidate receives more than half of all the votes cast in the election.”

This provision, however, cannot be read in isolation and must be read in the context of the entirety of election law. The relevant considerations are as follows:

Article 138 (3) (c) of the constitution states:

“In a presidential election, after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.”

The constitution states the principle, but it is parliament that delimits the framework within which the principle is implemented and interpreted. Moreover, because the election law, as enacted by parliament, is not in contravention of the constitution, it is valid for the purpose of setting the framework.

Bearing this in mind, consider once again the provisions of elections regulation 77 (1) which states that rejected ballots shall “be void and shall not be counted”

Consider also that section 109 (1) (p) of the Elections Act states that a rejected ballot shall be treated “as being invalid”

The definition of the word void, by any english dictionary, means of no legal effect; whereas the word invalid means not legally or officially acceptable. As such, a rejected ballot:

cannot be considered to have been validly cast for the purpose of Article 138 (4) (a) of the constitution; and
as the elections regulations clearly state “shall not be counted” for the purpose of Article 138 (3) (c) of the constitution.

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Consequently, on the question of whether or not rejected ballots should be computed alongside valid ballots, a very basic principle of law is to be applied: you cannot approbate and reprobate at the same time. A ballot is either valid, in which case it is included in the tallying of ballots for candidates; or it is rejected, in which case it is void and excluded in the tallying of ballots for the candidates.

Rejected ballots are legally condemned as being void and invalid and therefore cannot be included in the tallying of ballots alongside valid ballots; and in point of law cannot be counted except for the sole purpose of accounting for how many ballots were rejected.

@ecstacy, I agree entirely

Exactly!!