Otieno v Nelson & 2 others [2022] KEHC 10778 (KLR)

Otieno v Nelson & 2 others (Election Petition 1 of 2020) [2022] KEHC 10778 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10778 (KLR)

Republic of Kenya

In the High Court at Migori

Election Petition 1 of 2020

RPV Wendoh, J

June 17, 2022

IN THE MATTER OF RONGO CONSTITUENCY PARLIAMENTARY ELECTION AND QUALIFICATION AND IN THE MATTER OF ELECTIONS ACT NO. 24 OF 2011 AND IN THE MATTER OF IEBC ELECTIONS RULES AND REGULATIONS AND IN THE MATTER OF THE CONSTITUTION OF KENYA 2010 ARTICLES 22 (2) (C)

Between

Frederick Omondi Otieno

Petitioner

and

Oluoch Onyango Nelson

1st Respondent

Independent Electoral and Boundaries Commission (IEBC)

2nd Respondent

Retuning Officer Rongo Constituency

3rd Respondent

Judgment

1. Frederick Omondi Otieno (the petitioner) through the firm of Adhiambo Omondi & Co. Advocates filed the instant election petition dated 3/6/2022 challenging the clearance of the 1st respondent as a Political Candidate to vie for the Rongo Constituency, Parliamentary position under the ticket of the Jubilee Political Party. The petitioner stated that he brought the petition on his own behalf and on behalf of the members of the public of Rongo Constituency. In support of the petition, the petitioner swore an affidavit, filed a list of documents both dated 3/6/2022, a further affidavit and submissions both dated 10/6/2022.

2. The petitioner is seeking the following prayers against the respondents jointly and severally:-1. A permanent injunction restraining the 2nd respondent from gazetting the name of the 1st respondent as a Jubilee Candidate and/or Candidate for the Member of National Assembly seat Rongo Constituency.2. A permanent injunction restraining the 2nd respondent from printing out ballot papers bearing the names of the 1st respondent as a Jubilee Candidate and/or Candidate for the Member of National Assembly seat Rongo Constituency.3. A declaration that the clearance by the 2nd respondent of the 1st respondent to run for the Member of National Assembly seat Rongo Constituency is null and void.4. An order to the 2nd respondent to declare the 1st respondent illegible for running for office of the Member of National Assembly seat Rongo Constituency.5. Costs of the suit.6. Any other relief deemed fit by this court.

3. The grounds in support of the petition are that the 1st respondent was a member of the Orange Democratic Movement (ODM) before decamping to the Jubilee Party in the month of March 2022; that the 1st respondent departed from the Jubilee Party and registered himself as an Independent Candidate on 26/4/2022 automatically deregistering him from Jubilee Party; that all through, voters identified with the 1st respondent as an Independent Candidate until 29/5/2022; that the 1st respondent presented himself as a Candidate of Jubilee Party but during the clearance exercise, the 2nd respondent refused to clear the 1st respondent on the basis that the verification of his membership status on the Officer of the Registrar of Political Parties (ORPP) revealed that the 1st respondent was registered as an Independent Candidate and not as a Jubilee Member and therefore could not be cleared. It was further stated that under unclear circumstances, the 1st respondent was on 31/5/2022 cleared by the 2nd respondent to vie for the Rongo Constituency Parliamentary position under the Jubilee Party Ticket.

4. It was further averred that the 1st respondent’s clearance by the 2nd respondent to run for the Rongo Parliamentary Seat under the Jubilee Ticket was marred with illegalities; that no statutory timelines were considered because by law, as of the 26/3/2022 party hoping was no longer entertained and the Elections Act required the 2nd respondent to have the parties’ members register 120 days before elections that is on 9/4/2022.

5. From the foregone, the petitioner averred that as members of the public and more so voters of Rongo Constituency, it is important to them that the 2nd respondent is not allowed to gazette the 1st Respondent as an eligible Candidate to run for office and consequently the appearance of the 1st respondent in the ballot papers will force members of the public to vote for an illegible Candidate. The petitioner argued that this is a public interest litigation as the 1st respondent has violated the clear provisions of the Elections Act and the 2nd respondent’s rules relating to eligibility to run for office. The petitioner asked this court to allow the petition as prayed.

6. The petition was opposed. The 1st respondent through the firm of Kwanga Mboya & Co. Advocates filed a response to the petition, a replying affidavit sworn by the 1st respondent, a notice of preliminary objection all dated 8/6/2022 and submissions dated 13/6/2022.

7. The 1st respondent denied the contents of the petition and in particular asserted that he is still a member of the Jubilee Party and at no time did he decamp to become an Independent Candidate; that he did not de-register himself from the Jubilee Party but the same was done by a hacker through his e - citizen account who fraudulently deregistered him from the Jubilee Party and registered him as an Independent Candidate without his consent or knowledge; that at the time when the 1st respondent purportedly presented himself to the 2nd respondent for clearance, he was outside the country.

8. The 1st respondent defended his nomination by the Jubilee Party as its member of Parliament Candidate for the Rongo Constituency as lawful and above board as it was done after the 2nd respondent did due diligence and his clearance does not violate any provisions of the Elections Act nor the 2nd respondent’s rules relating to eligibility to run for office. The 1st respondent also averred that the instant petition falls short of the test of a public interest litigation as it is riddled with falsehoods.

9. In tandem with the petition, the 1st respondent filed a Notice of Preliminary Objection which is based on six (6) grounds. The Objection is premised on several grounds being the jurisdiction of this court to determine the issues raised in the petition and the suitability of the documents annexed to the petition. On the point of jurisdiction, the Objection stated that this court is devoid of jurisdiction as the petition offends the provisions of article 88 (1) and (4) ( e) & (f) of the Constitution. On the documents annexed to support the petition, the 1st respondent raised an objection that the documents offend the provisions of sections 80 & 81 of the Evidence Act. He prays that the petition lacks merit and the same should be dismissed with costs.

10. The 2nd and 3rd respondents entered appearance through the firm of Ngeri, Omiti & Bush Advocates. On their behalf, Counsel filed a response to the petition, a replying affidavit sworn by Abdi Tadicha Roba, the Returning Officer Rongo Constituency, a Notice of Preliminary Objection all dated 8/6/2022 and submissions dated 13/6/2022.

11. The 2nd and 3rd respondents stated that the law spells out the procedure to be followed during the nomination process; that in a bid to ensure that the procedure is strictly followed, the 2nd respondent developed a checklist to ensure compliance by the Returning Officers; that as per section 28 of the Elections Act, any political party that nominates a person to contest for an election under its ticket is required to do so within 120 days; that the party membership must be certified by the Registrar of Political Parties before the same is submitted to the Commission.

12. It was the 2nd and 3rd respondent’s case that in clearing candidates vying for the Parliamentary seat for Rongo Constituency, all aspirants who met the criteria for qualification as per article 99 of the Constitution and section 24 of the Elections Act were required to submit the requisite statutory documents for clearance; that the documents include a nomination certificate for party candidates issued by the political party and in the case of an independent candidate, clearance by the Registrar of Political Parties that the person was not a member of nay political party 3 months before the elections and various declarations forms to be filled by the candidate.

12. The 2nd and 3rd respondents posited that the 1st respondent appeared before the 3rd respondent for clearance on 31/5/2022 and submitted all the required documents being his Original Identity Card, a proposer and a seconder who are registered voters together with their original and their copies of National Identity Cards, a duly filled Statutory Declaration Form 19, Form 15 and a duly self-filled Declaration Forms and therefore satisfied all the requirements for clearance to contest for the seat of Member of Parliament; Additionally, the 3rd respondent confirmed that the 1st respondent was a registered member of the Jubilee Party from the Registrar of Political Parties and found that he is a duly registered member of the Jubilee Party under Registration Number JP48976213 and the 1st respondent’s name does not appear in the list gazetted Independent Candidate names.

13. The 2nd and the 3rd respondents defended their actions and averred that they carried out their mandate as required by law in particular under section 28 (1) (a) of the Elections Act.

14. The notice of preliminary objection raised by the 2nd and 3rd respondents is premised on 10 grounds challenging this court’s jurisdiction to determine the petition. The 2nd and 3rd respondents stated that the issues in the petition touch on pre-election nomination disputes which are to be handled by the Independent Electoral and Boundaries Commission, the 2nd respondent pursuant to the provisions of section 74 of the Elections Act, 2011 and section 4 of the Independent Electoral and Boundaries Commission Act, 2011.

15. Directions on the petition were taken. All parties complied and filed their respective submissions. In addition, all parties through their respective Counsel highlighted their submissions on 14/6/2022. I shall not rehash the submissions by each party as they were highlighted by their respective Counsel but the same have been taken into account.

16. Ms. Omondi submitted on behalf of the petitioner under three heads namely:- Jurisdiction, Eligibility and Public Interest Litigation.

17. On jurisdiction, Ms. Omondi relied on the 5 bench findings in the case of Sammy Ndung’u Waity vs . Independent Electoral & Boundaries Commission & 3 Others (2019) eKLR. Counsel submitted that the court in the aforementioned matter, came up with certain principles pertaining to matters such as the one before this court. In particular, the court articulated on 2 schools of thought being Divestiture school of thought and the Preservative school of thought. Counsel expounded on the latter school of thought and submitted that election is a process but not an event. If the process is not valid, it goes to the root of the election and the High Court has jurisdiction to hear the matter. Counsel also told this court that parties can invoke this court’s jurisdiction under Article 88 (4) (e) and asked the court to consider the findings of the court at paragraph 93 of the Sammy Ndung’u case (supra).

18. On the eligibility of the 1st respondent, it was submitted that Article 99 of the Constitution gives qualifications of a person to be elected as an MP. She submitted that it was no longer the ‘or’ but the ‘and’ which applies in the reading of that provision. Ms. Omondi stated that the 1st respondent is nominated as a Member of Political Party and the same time as an Independent Candidate. It was contended that the 1st respondent was not eligible because he was first an ODM member, then changed to Jubilee then on 23/4/2022 he made an application to be an Independent Candidate.

19. Ms. Omondi submitted that on 29/5/2022 it was discovered that the 1st Respondent was an Independent Candidate as opposed to a Jubilee Candidate. The 1st respondent was cleared to vie as a Jubilee Candidate but initially he was an Independent Candidate thus he was already barred as per the IEBC timelines which required an aspirant to be in a political party 120 days before elections that is on 9/8/2022 but he was already 70 days to the elections.

20. On the defence that the 1st respondent’s account was hacked and someone else made the application to be an Independent Candidate on his behalf, Ms. Omondi submitted that the 1st respondent did not report anywhere the serious offence and there is no report on record of such a report by the IEBC. It was also submitted that the application can be done remotely even if someone is outside the country.

21. On public interest litigation, it was submitted that the petition meets the threshold of public interest litigation since it was filed by a voter on behalf of other voters. Counsel relied on the case of Kenya Human Rights Commission & Another vs Attorney General & 6 Others(2019) eKLR.

22. Mr. Adawo was present for the 1st respondent. He submitted on four issues namely:- political rights of an individual, jurisdiction, eligibility and admissibility of documents.

23. On the issue of jurisdiction, counsel stated that even if an election is a process, the law has provided mechanisms to address disputes arising at every stage and there are bodies set up to address the issues. It was submitted that the law underarticles 88 (1), (4) (e) of the Constitution vests jurisdiction on the IEBC to settle issues which arise before elections. In addition, it was stated that section 74 of the Elections Act provides that before elections, IEBC has jurisdiction to handle the disputes arising. To support his submission, Counsel relied on the decision of this court made in case of Margaret Wanjiru Ireri & 2 others vs Monica Gathoni & 4 Others (2018) eKLR and quoted paragraph 11 of this court’s findings.

24. It was posited by Mr. Adawo that at this point, it is the nomination of the 1st respondent to vie for parliamentary election via Jubilee. He is not yet elected but is a nominee. Further, Counsel stated that where there are clear provisions on dispute resolution, they have to be followed and cannot be assumed. Reliance was placed on the case of Speaker of National Assembly vs Njenga Karume (2008) 1KLR.

25. Learned Counsel informed this court that there is a similar pending complaint before the IEBC Dispute Resolution Committee being Complaint No. 97 of 2022 the parties being Nicholas Ouma Mgambo vs Nelson Oluoch Onyango, IEBC & Returning Officer Rongo Constituency. Mr. Adawo posed that if the complaint would find its way to this court on appeal, this court would have difficulties in handling the appeal if it were to decide this case on merit. It was submitted that this court does not have jurisdiction to hear this matter.

26. On eligibility, Counsel submitted that the relevant laws are articles 99 and 99 (2) of the Constitution and there is nothing in the Article that addressed what has been brought in this petition.

26. On the admissibility of the documents, Mr. Adawo submitted that Section 80 of the Evidence Act provides that a party who wishes to rely on documentary evidence from a public authority, it should be certified. In the same breathe, it was submitted that section 80 (2) of the Evidence Act provides that a Certificate should accompany these documents but there is no certificate that has accompanied the documents and they should be expunged.

27. Mr. Adawo defended the clearance of the 1st respondent to vie under the Jubilee Party Ticket by submitting that the 1st respondent joined the Jubilee Party on 21/3/2022 which is 160 days clear to the election date. It was also stated that on the alleged attempt to withdraw, there is a register on record that the 1st respondent is a member of Jubilee and the Gazette Notice dated 13/5/2022 does not bear the name of the 1st respondent as an Independent Candidate.

28. Mr. Bush appeared for the 2nd and 3rd respondents. He submitted on the issues of jurisdiction and the process followed to clear a Candidate.

29. Mr. Bush submitted that Article 88 (4) (e) of the Constitution provides that settlement of electoral disputes relating to and arising out of nomination exercise excluding disputes subsequent to elections is the purview of the IEBC. Counsel further submitted that section 2 of the Elections Act defines nominations and therefore this is a dispute of the IEBC Committee. The court was also referred to section 74 of the Elections Act and article 88 (4) of the Constitution which provides for settlement of disputes and the findings in the case of Mohammed Abdi Mahamud vs Ahmed Abdullahi Mohamad & 3 Others; Ahmed Ali Muktar (Interested Party( (2019) eKLR where the Supreme Court dealt with this question in paragraph 68. In conclusion, it was submitted that even if an election is a process, it is divided into milestones, processes, stages and disputes at the nominations stage lies with the IEBC.

30. On the process followed, the court was asked to consider the 2nd and 3rd respondents’ response in paragraphs 10 - 18 of their response. Counsel pointed out that there are letters from the Office of the Registrar of Political Parties (ORPP) but the Registrar is are not a party to this suit yet the Registrar is best placed to answer the allegations being raised in this petition. Counsel also referred to page 33 of their response to the petition and submitted that the 3rd respondent found documents showing that the 1st respondent is a member of the Jubilee Party and the certificate register shows that he was a member of the Jubilee Party 120 days before elections.

31. In a brief rejoinder, Ms. Omondi responded on the issue of jurisdiction and submitted that there is no dispute on the issue of the provisions of article 88 (4) (e) of the Constitution save that if the illegality goes to the root of the election, the validity of the process affects the outcome of the election, the court cannot turn its back to it. It was further submitted that the 1st respondent’s resignation from the Jubilee Party was successful. The 1st respondent did not take the document to IEBC as he was weighing the political temperatures to see which political outfit fits him. On the documents as produced, Counsel submitted that the certificate is applicable when evidence is electronic in nature but the documents on record are merely correspondence.

32. I have carefully considered the petition, the responses thereto by the respondents, the annexures relied upon by each party, the notices of preliminary objection raised by the respondents and both the written and oral submissions of the parties through their Counsel. I have also certainly appreciated and read the written submissions by all parties but I see no need to rehash them since respective Counsel highlighted them. The issues for determination are thus:-i.Whether this court has jurisdiction to hear and determine this petition.ii.Whether the 2nd and 3rd respondents acted within the law in clearing the 1st respondent under the Jubilee Party Ticket.iii.Whether the 1st respondent is eligible to run for the Rongo Parliamentary Seat under the Jubilee Party Ticket.

33. The respondents by their respective Notices of Preliminary Objection, raised the issue of this court’s jurisdiction. On what constitutes a Preliminary Objection, the case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Limited(1960) EA 696 provides sufficient guidance. The Court of Appeal in Nitin Properties Ltd vs Singh Kalsi & Another(1995) eKLR captured what constitutes a Preliminary Objection as follows:-…a Preliminary Objection raises a pure point of law, which is argued on assumption that all facts placed on the other side are correct. It cannot be raised if any of the facts ascertained or if what is sought is the exercise of judicial discretion.”

34. The Supreme Court in Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others (2014) eKLR stated:-…a Preliminary Objection consists of a point of law which has been pleaded or which raises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”

35. The Preliminary Objection in this instance has been raised on the jurisdiction of this court with the backing of several provisions of the law. Once a question of jurisdiction is raised in any dispute resolution forum, it behoves the sitting umpire to address it first as it is the lifeline of the court. Jurisdiction opens the gates to litigants to approach the court to articulate their cases. In the absence of jurisdiction, the decision which arises from the court, is a nullity for it did not have the power and/or authority to hear the matter in the first instance.

36. This position was succinctly expressed by the court in the much-celebrated case of Owners of Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Limited(1989) 1 KLR where Nyarangi J held:-By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented to it in a formal way for its decision. The limits of this authority are imposed by statute, charter, or commission under which the court is constituted and may be extended or restricted…if no restriction or limit is imposed, the jurisdiction is said to be unlimited…if the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but except where the court has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given…Jurisdiction is everything, without it a Court has no power to make one more step. Where a court has no jurisdiction there would be no basis for continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

37. Similarly, the Supreme Court in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others (2012) eKLR expressed itself:-A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…”

38. Therefore, a court’s jurisdiction to entertain a matter is not a mere procedural technicality but it goes to the very heart of the matter.

39. It is agreed by all parties that the issue before this court is one centred around the eligibility of the 1st respondent as a nominee to run as a Member of Parliament for the Rongo Constituency in the 9/8/2022 elections under the Jubilee Political Party ticket. The dispute is one of a nomination nature as defined under Section 2 of the Elections Act. The respondents argued that this court is divested of jurisdiction on the basis of the provisions of the law under article 88 (4) (e) of the Constitution and section 74 of the Elections Act.

40. Article 88 (1) of the Constitution establishes the Independent Electoral and Boundaries Commission (Commission) which under sub-article 4 it is responsible for the supervising and conducting of elections. Under sub - article 4 (e) the Constitution as read together with Section 74 of the Elections Act and Section 4 (e) of the Independent Electoral Boundaries and Commission Act which have similar wordings, the Constitution and the 2 statutes provide that the Commission is responsible for:-the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of results.”

41. The jurisdiction of the Commission’s Dispute Resolution Committee to hear and determine disputes arising out of nominations has been the subject of various decisions. This was discussed by Odunga J in Judicial Review Misc. Application No. 301 of 2017 Republic vs Independent Electoral and Boundaries Commission & 2 Others ex-parte Wavinya Ndeti (2017) eKLR as follows:-…In my view the IEBC Committee exercises original jurisdiction under section 74 of the Elections Act unlike the Political Party Dispute Tribunal which exercises an appellate jurisdiction. Accordingly, in matters which purely fall within section 74 of the Elections Act and within the exclusive jurisdiction of the IEBC Committee, it is my view that the Committee is not deprived of jurisdiction by the mere fact that the complainant did not lodge his complaint with the Party’s Internal Dispute Resolution Mechanism. Whereas the PPDT and the IEBC have jurisdiction over electoral disputes, the Court must interpret their jurisdiction in a manner that does not render one statutory tribunal redundant. The Court must in such matters adopt a purposive interpretation of the respective electoral statutes. Therefore to interpret their jurisdiction in a manner that gives leeway to parties to either bypass one or ignore decisions made by the other would militate against the purpose for which the two Tribunals were set up. It is now clear that the PPDT deals with disputes arising from party primaries and this is clear from its jurisdiction. The IEBC on the other hand, it is my view, deals with nomination disputes that do not fall within the jurisdiction of the PPDT since appeals from the PPDT do not lie to the IEBC but to the High Court. If it were the position that the IEBC Committee would be free to determine issues which had already been determined by the PPDT without an appeal being preferred to the High Court, that position would amount to elevating the IEBC to an appellate Tribunal over the decisions of the PPDT. That scenario would also imply that even where a decision of the PPDT has been the subject of the High Court’s appellate jurisdiction, the IEBC might still be at liberty to entertain such a matter under the guise of resolving a nomination dispute. To my mind that would clearly be contrary to the principle of judicial hierarchy and would be incongruous to the statutory scheme and subversive of the true legislative intent.”

42. On appeal, the Court of Appeal agreed with the findings of the Superior Court in Civil Appeal No. 323 of 2013 Wavinya Ndeti v Independent Electoral & Boundaries Commission (IEBC) & 4 others(2014) eKLR and held:-The conferment of jurisdiction on the PPDT to hear and determine disputes relating to party primaries under the Political Parties Act cannot however oust the jurisdiction of the IEBC to adjudicate over a dispute arising from nominations provided such jurisdiction is properly invoked. Neither can that jurisdiction be taken away from IEBC by a memorandum of understanding.”

43. To add its voice to the discussions surrounding pre-election disputes, the Supreme Court considered the interpretation of article 88 4 (e) of the Constitution (supra) in Silverse Lisamula Anami v Independent Electoral & Boundaries Commission & 2 others (2019) eKLR held:-…it is not in doubt that the IEBC has been given the mandate to settle electoral disputes (including disputes relating to or arising from nominations) excluding election petitions and disputes subsequent to the declaration of results. Hence, even though the Constitution has not defined what “electoral disputes” in this regard means, it specifically provides that some of those envisaged disputes, which are under the purview of the IEBC, would emanate from nominations. Nomination is one of the qualifications through which one becomes eligible to participate in an election. The IEBC in that context is expressly excluded from adjudicating over election petitions.”

44. The Supreme Court also in the case of Mohamed Abdi Mahamud (supra) developed principles on hearing and determinization of pre-election disputes among others being that all pre-election disputes including those arising out of nominations should be brought for resolution to the IEBC or PPDT in the first instance.

45. The High Court sitting in Meru in Petition No. 6 of 2022 Joseph Karithi Ben vs Independent Boundaries Commission & 5 Others (2022) eKLR considered a Preliminary Objection as the one before this court. Muriithi J held: -Consequently, the court will direct that the Preliminary Objection is successful to the extent that disputes, such as a part of which is before the court, relating to nomination of candidates is the preserve of the IEBC under article 88 (4) (e) of the Constitution and section 74 of the Elections Act.”

46. This Court also takes the position it took in the case of Margaret Wanjiru Ireri (supra) wherein it held that:-Flowing from the above provisions (Article 88 (4) (e) of the Constitution and Section 74 of the Elections Act) the Constitution and the Legislature set out to enact various laws on resolution of disputes relating to electoral matters and it is incumbent upon the political parties and their members to adhere to those procedures. There is now a host of authorities that have held that when the Constitution or legislature prescribes the manner in which a dispute should be resolved that procedure should be adhered to…”

47. It would then be correct to conclude that all pre-election nomination disputes are to be resolved in the first instance, by the Commission’s Dispute Resolution Committee.

48. While it is true that the High Court has supervisory jurisdiction and the mandate to determine any electoral disputes under article 105 of the Constitution, it can only assume jurisdiction on pre-election disputes either on appeal or judicial review from the decisions of the Political Parties Tribunal or the Commission’s Dispute Resolution Committee. If this court were to assumes jurisdiction in this matter, then the parties will be denied a right of appeal on the issue of nomination to the High Court.

49. Assuming that the question of the validity of a Candidate being elected to a seat as the one before this court, is brought after the election period, the High Court has the powers to examine the nomination process as long as the issue of the Candidate’s nomination was not challenged before the Commission’s Dispute Resolution Committee. This was the holding of the Supreme Court in the case of Silverse Lisamula Anami (supra) as follows:-Our view is that articles 88(4)(e) and 105(1) and (3) must be read holistically and that whereas the IEBC and PPDT are entitled, nay, empowered by the Constitution and Statute to resolve pre-election disputes including nominations, there are instances where the election Court in determining whether an election is valid, may look to issues arising during the pre-election period only to the extent that they have previously not been conclusively determined, on merits, 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. Where a matter or an issue has been so determined, then the election Court cannot assume jurisdiction as if it were an appellate entity since that jurisdiction is not conferred on it by the Constitution.”

50. I would agree with the submissions of the respondents that although an election is a process and not an event, at each stage of the process, there are specific mechanisms that have been put in place by the law to resolve any disputes which may arise. The doctrine of exhaustion of remedies, requires that an aggrieved party considers the first avenue to present his grievance before approaching another forum.

51. In any event, Mr. Adawo disclosed that there is already a similar complaint being Complaint No. 97 of 2022 the parties being Nicholas Ouma Mgambo vs Nelson Oluoch Onyango, IEBC & Returning Officer Rongo Constituency before the Commission’s Dispute Resolution Committee which fact was not controverted by the petitioner’s Counsel.

52. The foregone crystallizes the position that this court by virtue of the provisions of article 88 (4) (e) of the Constitution, section 74 of the Elections Act and Section 4 ( e) of the Independent and Electoral Boundaries Commission Act, is divested of jurisdiction to hear and determine this pre-election dispute which is a nomination issue. The petitioner ought to have sought the appropriate remedy in the Commission’s Dispute Resolution Committee in the first instance.

53. In the end, the preliminary objections raised by the 1st, 2nd and 3rd respondents all dated 8/6/2022 are upheld. The petition dated 3/6/2022 is hereby struck out.

54. Since this petition was filed by a voter who is keen to ensure that due process is followed as one of his democratic rights, each party shall bear their own costs.

DATED, SIGNED and DELIVERED at MIGORI this 17th day of June, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMs. Omondi for the Petitioner.Mr. Adawo for the 1st Respondent.Mr. Musembi holding brief for Mr. Bush for the 2nd and 3rd RespondentsNyauke Court Assistant