[2022] KEMC 7 (KLR)

Omar v Independent Electoral and Boundaries Commission (IEBC) & 14 others (Election Petition E005 of 2022) [2022] KEMC 7 (KLR) (15 November 2022) (Ruling)

Neutral citation: [2022] KEMC 7 (KLR)

Republic of Kenya

In the Mandera Law Courts

Election Petition E005 of 2022

PW Wasike, SRM

November 15, 2022

Between

Halima Billow Omar

Petitioner

and

Independent Electoral and Boundaries Commission (IEBC)

1st Respondent

Wafula Chebukati (Chairperson, Iebc

2nd Respondent

United Democratic Movement

3rd Respondent

Maryam Issak Hussein

4th Respondent

Sahara Aden Mohammed

5th Respondent

Maryam Khalif Adan

6th Respondent

Amran Adan Abdirahman

7th Respondent

Zeituna Omar Osman

8th Respondent

Halima Khalif Sheikh

9th Respondent

Fardosa Mohamed Hassan

10th Respondent

Samia Hassan Abdi

11th Respondent

Zeituna Abdi Hassan

12th Respondent

Quresha Gedi Samatar

13th Respondent

Khadra Abdullahi Mohamed

14th Respondent

Muntaza Ahmed Haji

15th Respondent

Ruling

1. The 5th Respondent filed a Notice of Preliminary Objection dated 11th October 2022 (hereinafter where appropriate referred to as the P.O) which seek orders to dismiss the Petition herein on the basis that this Court lacks jurisdiction to hear and determine the Petition. That the issues raised in this Petition relate to pre-election disputes which ought to have been dealt with by the 1st Respondent’s Dispute Resolution Committee that is mandated by the Law to do so.

2. The court directed that the PO be disposed by way of written submissions. the respective parties’ advocates were directed to file comprehensive written submissions. The matter came up on 10/11/2022 for direction on ruling date. All parties counsel confirmed they had filed and served the written submissions safe to note that Mr. Kurgat for 3rd respondent conceded that he had filed written submissions in respect of the Petitioners application and not in respect of the PO. He however indicated that he will not suffer any prejudice notwithstanding the lack of his written submissions to the P.O.

The 5th Respondents Submissions 3. The 5th Respondent took the liberty to give a background which for clarity sake I reproduce hereunder.i.That the Petition emanates from the submission of names of individuals to be nominated by the Petitioners as nominated members of County Assembly of Mandera.ii.That the 1st Respondent published in the newspaper on 27th July, 2022 names of individuals who had been nominated. In the list, the Petitioner had been proposed for nomination to the Senate. That this was done erroneously and that the petitioner challenged the list at the Political Parties Dispute Tribunal (“PPDT”) under Complaint No. E107 of 2022, Halima Billow Omar vs United Democratic Movement; Independent Electoral & Boundaries Commission; and Registrar of Political Parties.iii.That the parties to the PPDT Complaint No. E107 of 2022 recorded a consent which was adopted as the Judgment of the PPDT in the following terms:The 3rd Respondent agreed to reconstitute and or amend its party list published by the 2nd Respondent (1st Respondent herein) on 27th July, 2022 and rectify the listing of the Applicant/ Complainant at No. two (2) under persons with Disability Nominee to the Senate Category by listing the Applicant/Complainant herein at No. three (3) of the 1st Respondent’s party list under Gender Special Seats Nominee (Gender Top Up) category for (2) on the reconstituted list is not practical by dint of Article 90 (2) (d).iv.That the 3rd Respondent did not comply with the above Orders forcing petitioner to institute contempt of court proceedings against them before the PPDT. That the tribunal found the 3rd Respondents in contempt of its Orders and directed the 3rd Respondent to purge the contempt by complying with the Consent Orders.v.That on 6th September, the Petitioner, through her advocate, wrote to the 1st & 2nd Respondents notifying them of the decision of the PPDT. However, the Petitioner did not raise any complaint with the 1st Respondent’s Dispute Resolution Committee regarding the Party List it had published on 27th July, 2022. vi.On 9th September, 2022, the 1st Respondent, vide a gazette Notice No. Vol. CXXIV-No. 186, Gazette Notice No. 10712 published the Returns of the various elections through nomination for various seats, including those of the 4th-15th Respondents. That the effect is that the 4th-15th Respondents having been gazetted are deemed to be duly elected and are currently serving as members of the Mandera County Assembly.

4. On nature of a P.O, the 5th respondent cited Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd [1969] E.A 696 where the court stated,So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.Further, in the same case, Sir Charles Newbold, P. while expressing his view as to what constitutes a preliminary objection stated as follows:A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

5. It is the 5th submissions that the Preliminary Objection herein raises pure issues of law as it relates to the jurisdiction of this Court to hear and determine the dispute in this Election Petition. That the Preliminary Objection is on pure points of law which have been raised on the assumption that all the facts pleaded by the Petitioner in her Petition are correct. That the 5th Respondent’s Preliminary Objection has not introduced any new fact or raised any factual issues but is based on the facts and evidence pleaded by the Petitioner and which are already on record and whose correctness has not been contested.

6. It is the 5th submissions that this Court lacks jurisdiction to entertain, hear and determine this Petition since the subject matter directly and substantially in issue herein relates to a pre-election nomination dispute for the Nominated Members of the Mandera County Assembly.

7. The 5th respondent submitted that where the Constitution or the law gives a different body or institution power to deal with certain disputes then the jurisdiction of this Court is residuary and not primary. That as such, the Petitioner ought to have filed the pre-election dispute at the appropriate forum when it was due.

8. The 5th respondent cited Article 88 (4)(e) of the Constitution of Kenya, 2010, Section 74 (1) of the Elections Act, 2011, Section 4 (e) of the Independent Electoral and Boundaries Commission Act, 2011 to buttress the submissions that the Constitutional and legislative provisions above intended that the resolution of pre-election disputes relating to the nomination of candidates falls under the exclusive jurisdiction of the 1st Respondent herein while all post-election disputes would be under the domain of an Election Court.

9. The 5th respondent cited the holding and dictum of the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others; Ahmed Ali Muktar (Interested Party) [2019] eKLR on whether an election court has jurisdiction to determine pre-election disputes. The 5th respondent submitted that the Supreme Court restated the following principles in the case:(68)So as to ensure that Article 88 (4) (e) of the Constitution is not rendered inoperable, while at the same time preserving the efficacy and functionality of an election Court under Article 105 of the Constitution, the Court developed the following principles:i.all pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT, as the case may be, in the first instance;ii.where a pre-election dispute has been conclusively resolved 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, such dispute shall not be a ground in a petition to the election Court;iii.where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to 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; the High Court shall hear and determine the dispute before the elections, and in accordance with the Constitutional timelines;iv.where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a petition to the election Court;v.the action or inaction in (iv) above shall not prevent a person from presenting the dispute for resolution to 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, even after the determination of an election petition;vi.in determining the validity of an election under Article 105 of the Constitution, or Section 75 (1) of the Elections Act, an election Court may look into a pre-election dispute if it determines that such dispute goes to the root of the election, and that the petitioner was not aware, or could not have been aware of the facts forming the basis of that dispute before the election.

10. The 5th respondent further submitted this Court as an election court cannot place reliance on the decision of PPDT neither can it enforce the Orders of the Political Parties Dispute Tribunal in PPDT Complaint Number E107 of 2022: Halima Billow Omar Vs. United Democratic Movement & Another, through this election Petition as sought in the Petition herein.

11. The 5th Respondent submitted on PPDT as established under Section 39 of the Political Parties Act and its jurisdiction as set out in Section 40 of that Act which is to hear and determine disputes between members of political party; disputes between members of political parties and a political party; disputes between political parties; and disputes between coalition partners. That the Act gives PPDT the power to enforce its own decision in the same manner as the Magistrates Court does. Authority in Patricia Muthoni Waweru & 4 Others v Jane Chemutai Koskei & 2 Others [2018] eKLR, Duncan Ochieng’ Oluoch & 3 Others v Orange Democratic Movement Party [2017] eKLR, were relied upon.

12. The 5th Respondent further submitted citing Paragraph 26 and 38 of the petitions and the prayers sought in the petition to reinforce their contention that that the Petitioner is seeking to enforce the decision and orders of the Political Parties Dispute Tribunal issued on 16th August, 2022 and 4th September, 2022 respectively through this petition.

13. Lastly the 5th respondent submitted that this court under this Petition as drawn and filed is an Appeal and/or a Review disguised as an election petition against the decision of the Political Parties Dispute Tribunal in PPDT Complaint Number E107 of 2022: Halima Billow Omar Vs. United Democratic Movement & Another. That this Court lacks jurisdiction to sit on an Appeal or Review of the decision of the Political Parties Dispute Tribunal.

14. In summary the 5th respondent submitted that this Court lacks jurisdiction to hear and determine this petition and should proceed to dismiss the Petition.

The 1st and 2nd Respondents submissions 15. The 1st and 2nd Respondents supported the P.O that this court lacks jurisdiction to hear and determine this petition as the petition is defective, bad in law, incompetent and an abuse of the court process.

16. That although filed as an election petition it does not qualify to be an election petition.

17. That the P.O is no premised on contested fact. They cited The Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR 1 and Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd [1969] E.A to buttress what is a PO on jurisdiction.

18. That the petitioner is seeking to enforce orders emanating from the PPDT and as such they are inviting the court to arrogate itself power to act as judicial review and or appealed court yet it has concurrent jurisdiction with PPDT. The authority in Patricia Muthoni Waweru & 4 Others –vs- Jane Chemutai Koskei & 2 Others [2018] eKLR, where Mary Kasango was cited.

19. That petitioners claims ought to have been addressed by the PPDT or at the High Court. That petitioner did not use or exhaust the alternate forum to seek redress on prelection disputes i.e. PPDT.

20. Supreme Court case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others (also cited by the other respondents to highlight rules as set by the Supreme court.

21. They urged the court to allow the PO as prayed ad n award costs to the respondents.

4th, 6th - 15th Respondents' Submissions 22. The 4th, 6th – 15th Respondents’ support the 5th respondent’s Preliminary Objection by submitting that the Petitioner is seeking to enforce or give effect to the PPDT decision by way of an election Petition. The Court was invited to look at the striking similarity of the reliefs sought in the Petition and in the Complaint No. E107 of 2022 Halima Billow Omar –vs- United Democratic Movement & others.

23. That the Petitioner has never sought for execution or enforcement of the decision in the Tribunal as permitted by the Political Parties Act but rushed to this Court bypassing the provisions of section 41 (3) of the Political Parties Act on the enforcement of the decision of the PPDT. They submitted that it is a well-established jurisprudence in Kenya that an election court does not have jurisdiction to hear and determine pre-election disputes and further that this Court has no original or appellate powers to enforce the decisions of the PPDT. That the Petition raises pre-election disputes which cannot be determined by an election Court, and secondly, the Petition is seeking to erroneously enforce the decision of the PPDT which contravenes the provisions of the Election Act and the Political Parties Act.

24. Authority in Macharia and Another -Vs- Kenya Commercial Bank Ltd & 2 Others [sup ct Civil Appl. No. 2 of 2011] (UR), where the Court held as follows was cited: -“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 itself jurisdiction exceeding that which is conferred upon it by law. We agree with the counsel for the first and second respondents in his submission that the issue as to whether a Court of Law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter for without jurisdiction the Court cannot entertain any proceedings.”

25. They cited also case of The Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR 1 where Nyarangi J.A. held as follows:'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

26. The 4th, 6th – 15th Respondents submitted that the Petition raises pre-election disputes which ought to be determined pursuant to Article 88 of the Constitution and Section 74 of the Elections Act.

27. That at paragraphs 16 and 17 of the Petition, the Petitioner lays the genesis for the dispute herein which arose from her application to the 3rd Respondent for nomination as a member of the County Assembly for Mandera County under the Gender Top-up category. That at paragraph 18 of the Petition, the Petitioner indicates that she was dissatisfied with the publication of the 1st Respondent of 27th July 2022 which formed the subsequent dispute before the PPDT. As in the Tribunal, the Petitioner is aggrieved that her name is missing from the list of nominees published in the Gazette Notice dated 9th September, 2022.

28. That the basis of the petition as laid by the Petitioner and the issues raised are pre-election disputes and can only be determined pursuant to Article 88(4)(e) of the Constitution and section 74 of the Elections Act. That as such the Petition is a continuation of the Petitioners complaint or grievances prior to the publication of the Gazette Notice. This was re-emphasized in the 4th,6th-15th Respondents supplementary submissions.

29. That Article 88(4)(e) of the Constitution empowers the 1st Respondent to undertake the function of the settlement of electoral disputes including disputes relating to or arising from the nominations but exclude election petition and dispute subsequent to the declaration of election results. They submitted that Section 74 of the Elections Act provides that .., Pursuant to Article 88 (4) (e) of the Constitution, the Commission shall be 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 election results.”

30. That the issues raised by the Petitioner against the Respondents were within the purview of the core mandate of the Independent Electoral and Boundaries Commission as per Article 88 of the Constitution and section 74 of the Elections Act.

31. They cited the authority of Court of Appeal in the case of Fredrick Odhiambo Oyugi –v- Orange Democratic Movement & 2 others [2017] eKLR observed as follows;On the face of those provisions conferring jurisdiction on IEBC and PPDT respectively. There is no doubt that both the IEBC & PPDT are clothed with power to deal with disputes arising from nominations.

32. Further reliance was placed on the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others [2013] eKLR, where the Supreme Court held that:“… a court’s jurisdiction flows from either the Constitution or legislation or both; that it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by the law; and that jurisdiction goes to the very heart of the dispute and that it is equally accepted that; where there is a clear procedure prescribed for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

33. They submitted that no evidence has been adduced by the Petitioner that she exhausted the available remedies that deal with nomination disputes under cited provisions of the Constitution and the Election Act which required her to first approach the 1st Respondent’s Dispute Resolution Committee. Such an act of skipping one process ripped off this court the jurisdiction to deal with matters of such nature. The Petitioner has not pleaded any ground in the Petition that all the available mechanisms under Article 88(4)(e) of the Constitution and Section 74 of the Elections Act were exhausted fully before filing the Petition herein.

34. They cited the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR wherein the court held as follows;"… We see this as the crux of the matter in this and similar cases. It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. We think there were sufficient safeguards in place for a valid determination of the various plaintiffs’ disputes had they filed them within the church set up. And there was always the right, acknowledged by the learned Judge, of approaching the courts after exhaustion of the church mechanisms. By failing to do so, and quite apart from the force of their apprehensions, the appellants effectively failed to exhaust their remedies and essentially short-circuited the process by filing suits prematurely.

35. The 4th, 6th – 15th Respondents further attacked the petition by submitting that this Court lacks jurisdiction to decide in the Petition as framed as the Petitioner is seeking to enforce the decision of the Political Parties Disputes Tribunal (PPDT) Complaint No. E107 of 2022, Halima Billow Omar versus United Democratic Movement and Others.

36. Paragraphs 19, 20, 21, 22, 23, 24, 25, and 26 of the Petition were focused on to show that the Petitioner discussed the grounds for the subject Petition laying a basis from the decision of the PPDT. That the grounds of the Petition as framed invite the Court to enforce, review and or punish for contempt the 1st, 2nd and 3rd Respondents for failing to consider the decision of the PPDT and the subsequent consent order.

37. They submitted that this Court, a gazetted election court has special jurisdiction and cannot enforce, review and or sit as an appellate court on the decision of other judicial or quasi-judicial bodies not subject to the election dispute.

38. They agree that the Petitioner filed the dispute before the PPDT, in Complaint No. E107 of 2022, Halima Billow Omar versus United Democratic Movement and Others, that the dispute was determined and an order was made pursuant to section 40 of the Political Parties Act 2011. This Court has concurrent jurisdiction as the Political Parties Disputes Tribunal pursuant to Article 169 of the Constitution.

39. That the Political Parties Act establishes mechanisms for the enforcement of the decisions of the PPDT. They cited Section 41(3) of the Act that provides as follows;A decision of the Tribunal shall be enforced in the same manner as the decision of a Magistrate Court but the Tribunal shall have the powers of the High Court to punish for any acts or omissions amounting to contempt of the Tribunal.

40. That further, Section 40 (fa) of the Political Parties Act, 2011 as amended in 2022, stipulates the jurisdiction of the PPDT which includes inter-alia determination of disputes arising out of party nominations. That under subsection 2, this jurisdiction can only be exercised unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal mechanism within the political party.

41. They further submitted on Section 41 of the Political Parties Act and Regulation 34(1) of the Political Parties Disputes Tribunal (Procedure) Regulations, 2017 which provides for the mechanisms for enforcement of the decisions of the Tribunal. That any appeal from the decision of the Tribunal lies to the High Court on matters of law and facts and to the Court of Appeal on questions of law only.

42. On enforcement of the decisions of the Tribunal they cited, section 41(3) of the Act that provides that the decisions of the Tribunal shall be enforced in the same manner as a decision of a Magistrate Court but the Tribunal shall have the powers of the High Court to punish for any acts or omission amounting to contempt of the Tribunal.

43. They placed reliance on the authority in the case of Patricia Muthoni Waweru & 4 Others –vs- Jane Chemutai Koskei & 2 Others [2018] eKLR, where Mary Kasango, J stated as follows:“25. The decision of PPDT, in the case filed by Jane, was so reached despite the fact the internal political party dispute resolution mechanism of Jubilee party had not been exhausted. It therefore follows that PPDT, in reaching its decision, over reached its powers, and acted without jurisdiction. See the case of Jubilee Party of Kenya –vs- Victor Kiplagat & 8 Others [2017] eKLR where L. Njuguna J found that where a dispute on party list should have been heard by internal dispute resolution mechanism or by IEBC.26. Similarly, Olga Sewe, J in the case Jubilee Party of Kenya –vs-Farah Manzoor [2017] eKLR in regard to the provisions of section 40 (2) of the Political Parties Act and stated:“It is instructive that the above provisions are couched in mandatory terms. It is therefore manifest that since the respondent had not exhausted the parties’ internal dispute resolution mechanism and obtained a determination, the PPDT had no jurisdiction to entertain the complaint. It is needless to say that jurisdiction is everything and without it the tribunal was powerless.”27. From the above, it becomes clear that the Election Court in purporting to give effect to PPDT judgment erred because that judgement was reached without jurisdiction.28. Perhaps more importantly the Election Court erred because it was the duty of the Election Court to consider the evidence and the law presented by Jane and the Respondents and that consideration should have been independent of the PPDT judgment. The Election Court had no basis to rely on the finding of the PPDT because it was not considering an appeal from PPDT. Such an appeal would in any case have been filed before the High Court as provided in section 41 (2) of the Political Parties Act. Further, the Election Court erred because it was not enforcing the PPDT decision. Such an enforcement could only proceed as provided under section 41 (3) of the Political Parties Act which provides:“a decision of the tribunal shall be enforced in the same manner as a decision of the Magistrate’s Court.”29. How are decisions of the Magistrates’ Court enforced? By execution as provided under the Civil Procedure Rules.30. What however, was before the Election Court was not such an enforcement of PPDT decision but rather it was an Election Petition. The Election Court should have declined the invitation by Jane through her petition to enforce the PPDT decision. Such an invitation had no basis in law and was uncalled for.”

44. The 4th, 6th – 15th Respondents submit that the grounds of the Petition and the prayers sought therein clearly direct this Court to enforce the decision of the PPDT yet a Magistrate Court has concurrent jurisdiction with the Political Parties Disputes Tribunal in the enforcement of its orders and that Tribunal has powers equivalent to that of the High Court in punishing contempt of its orders pursuant to Article 169 of the Constitution, sections 40 and 41 of the Political - Parties Act.

45. The 4th, 6th – 15th Respondents submitted that this Court has no powers to grant the prayers sought in the Petition. That this court as an election Court, can only be granted within section 83 of the Elections Act determining whether the election by nomination process was done in accordance with the principles laid down in the Constitution and in the written law and whether the non-compliance substantially affected the results of the election process. That determination cannot be made with the Petition as currently framed. In the supplementary submissions they further faulted the Petitioners submissions and said it was misleading and that the petition is not just laying the basis for the dispute but actually is seeking to enforce the decision of the PPDT. They also attacked the petitioners attempt to submit on the application dated 1/11/2022 ye the application is still held in abeyance pending determination of the P.O.

46. The 4th, 6th – 15th Respondents placed reliance on the decision of the High Court in the case David Odhiambo Ofuo v Orange Democratic Movement Party & 2 others [2017] eKLR where the Court stated as follows;“I have indicated in the foregoing that the powers that this court has over matters heard under section 40 of the Political Parties Act are appellate. It has no powers to enforce the orders of the Tribunal. Under section 41(3) of the Act the Tribunal has powers to enforce its decisions in the same manner a magistrate’s court can enforce its decisions. Under section 10 of the Magistrate’s Courts Act (no. 26 of 2015) a magistrate’s court has powers to punish any person who is in willful disobedience of its judgment, decree, order or direction. This means that the Tribunal can punish the respondents if it finds that they have disobeyed its orders. This court can only deal with an appeal arising from the Tribunal’s orders in the contempt proceedings.”

47. They cited authority in High Court case of Southern Star Sacco Limited v Vanancio Ntwiga [2021] eKLR where the Court observed as follows;"…It is true that jurisdiction is the soul and lifeblood of judicial activity. Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio… It is therefore necessary when deciding whether a statutory power or duty has been lawfully exercised or performed, to identify the scope of that power and duty, and which involves construing the legislation that confers the power and duty… for orderly resolution of disputes and the maintenance of the rule of law there must compliance with statutory provisions which are constitutional for settlement of disputes. In the Speaker of the National Assembly -v- James Njenga Karume (1992) eKLR it was state that – where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by a law must be strictly adhered to:

48. This Court was urged not to venture outside the statutory powers of an election Court and to be bound by the decisions of the superior courts on the exercise of jurisdiction of an election Court and that the defects in the Petition cannot be cured by Article 159 of the Constitution as the same goes to the jurisdiction of this Court.

Petitioner’s Submissions 49. The Petitioner opposed the P.O and submitted that this Court has jurisdiction to determine the Petition herein which seeks to challenge the illegal decision of the 1st and 2nd Respondents’ not to gazette the Petitioner in their gazette notice dated 9th September 2022.

50. The Petitioner submitted that the course of action arose on 9th September, 2022 wherein the 1st and 2nd Respondents failed, refused and/or neglected to gazette the Petitioner in the said gazette notice and that the said gazettement rendered the Political Parties Dispute Tribunal and the IEBC functus officio and the Petitioner’s only recourse is this Court.

51. The petitioner submitted that the 5th Respondent notice of P.O herein, did not amount to a Preliminary Objection. She cited what a ‘Preliminary Objection’ is as was described in the Mukisa Biscuits Manufacturing Co. Ltd. Vs. West End Distributors Limited (1969) EA. 696, to mean: -“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”In the words of Sir Charles Newbold P. at page 701, B: -"...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.” (Emphasis added)

52. Similarly, she cited Civil Suit No. 85 of 1992, Oraro vs. Mbaja [2005] 1 KLR 141, Ojwang J, as he then was, cited with approval the position in Mukisa Biscuit -vs- West End Distributors (supra) and stated as follows on the operation of preliminary objection: -"…. I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.

53. That the Respondent’s preliminary objection on the allegation that the Petitioner has not exhausted pre-election dispute fora is not a pure point of law as it raises issues of facts. That this preliminary objection is based on contested facts and therefore defective as the court is inclined to ascertain and investigate facts.

54. She cited the case of Sella Rose Anyango v Attorney General & 2 others [2021] eKLR as follows:“It is no doubt that, in order for a preliminary objection to be successful three elements must be satisfied. The preliminary objection must raise a pure point of law; all facts pleaded by the other side should be correct and agreed upon and that there should be no facts that need to be ascertained…he Respondent has not met all the requirements. On the first element, the Respondent claim that the Petition is an ordinary suit disguised as a Constitutional Petition. I agree with the holding in Moses Naula & 358 others v. Attorney General & 4 others [2014] eKLR (Supra) as raised by the Petitioner, that in order to determine such a question there must be an investigation into the facts of the case. This therefore fails the first test. On the second element, the Respondent having filed a Replying Affidavit dated 23rd February 2021 denying the allegations made by the Petitioner in her Petition, the second test similarly fails. On the final requirements, I have already determined that certain facts must be ascertained in order to determine whether the Petition meets the Constitutional threshold. I therefore find the preliminary objection fails the final test.”

55. She submitted that for this court to ascertain whether the Petition relates to a pre-election nomination dispute or whether as maintained by the Petitioner, the course of action arises out of the gazettement by the 1st and 2nd Respondents on the 9th September 2022, and further, whether the dispute resolution mechanisms were exhausted and whether it is an appeal or review of the decision of the PPDT, are issues requiring interrogation of facts and can therefore not be determined in a preliminary objection.

56. Authority in Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177 as cited with approval in the case of Sella Rose Anyango v Attorney General & 2 others [2021] eKLR it was observed that a Court in determining a preliminary objection can look at the pleadings and other relevant documents but must abide by the principle that the objection must raise pure points of law. It was held thus: -"…In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion.In law, A Question of Law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.In law,A Questionof Fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.”

57. The petitioner placing reliance on Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, submitted that this Court is empowered to look at the pleadings and other relevant matter in its records. The court was urged to look at the Notice of motion Application filed by the Petitioner dated 1st November, 2022. That this Application was responding to new issues and/or freshly raised by the Respondents and that Respondents have since responded to the said Notice of Motion Application. The content of the said Applications contest allegations by the Respondents that the Petitioner has not exhausted pre-election dispute fora and the allegations that this Court is sitting on Appeal from PPDT.

58. The court was urged to look at and note, the 4th, 6-15th Respondents written submission dated 4th November, 2022 at Paragraphs 18 and 21. That they submitted as follows: -Par. 18 “The Petitioner has not adduced any evidence showing that she exhausted the remedies under these provisions”Par. 21 “No evidence has been adduced by the Petitioner that she exhausted the available remedies that deals with nomination disputes”

59. That in view of above the Notice of Preliminary Objection filed by 5th Respondent herein, touches on and/or concerns disputed facts which needed to be interrogated and/or investigated and evidence taken. That the Preliminary Objection raised is defective and does not meet the legal threshold.

60. On whether this court has jurisdiction to determine the petition, it is her submissions that this Court has jurisdiction to determine and overturn the decision of the 1st and 2nd Respondents’ for failing to gazette the Petitioner herein in the gazette notice dated 9th September, 2022 which contained a list of 3rd Respondent’s nominated members to the County Assembly of Mandera.

61. That after the said gazettement, the 1st and 2nd Respondents herein issued a press statement intimating that the said gazettement closed the nomination party list and cannot be challenged unless by an order of Court. The court was invited to look at annexure HBO-2 of the Petition). That an extract of the said statement was as follows:“We wish to inform the public that as per the Constitution and the Elections Act, the party list remains a closed list as at the date of General Elections and for the term of Parliament or County Assembly, as the case may be, for which the candidates are elected and cannot be changed unless through an order of the court.”

62. That from the foregoing the said gazette notice could not be challenged unless by the decision of this Court, not by the Political Parties Tribunal, IEBC or any other body. That upon the 1st and 2nd Respondent’s gazettement of the nominated candidates to the County Assembly on 9th September 2022, the Political Parties Dispute Tribunal and the IEBC became functus officio and ceased to have jurisdiction to hear and determine any matter concerning the nomination party list thus being the reason why the Political Parties Dispute Tribunal downed its tools and declined to proceed further in determining the matter before it.

63. Further reliance was placed on the authority in the case of Independent Electoral and Boundaries Commission Vs Jane Cheperenge & 2 Others, Petition No. 5 of 2016, the Supreme Court held as follows;Par. 37 “At this juncture, we reiterate and affirm the position that, upon gazettement of nominated members of County Assemblies, any aggrieved party would have to initiate the process of challenging the said nominations by filing an election petition at the Resident Magistrate Court designated as an Election Court under Section 75 of the Election Act.”

64. That the Supreme Court of Kenya in the case of Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR held as follows was cited: -[Par.115] The Elections Act confers jurisdiction upon Magistrates Courts to determine the validity of the election of a member of a County Assembly; Section 75 (1A) of the Act provides that:“A question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice.”[Par. 117] It is clear to us that the Constitution provides for two modes of ‘election’. The first is election in the conventional sense, of universal suffrage; the second is ‘election’ by way of nomination, through the party list. It follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of ‘election petition’.

65. Another case of Republic –vs- Independent Electoral & Boundaries Commission ex parte Imani Fumao Redo Judicial Review Case No. 201 of 2013, the court, observed as follows was cited:“The evidence on record shows that the name of the ex-parte Applicant was published as duly nominated as a member of the County Assembly of the Tana River vide the Special Issue of the Kenya Gazette Notice No. 9794 Vol. CXV No.105 of 17th July, 2013. Through the gazettement, the rules of the game completely changed so that the ex-parte Applicant could only be removed through an election petition filed as per the Constitution and the Elections Act, 2011. ”

66. That it was reiterated in the case of National Gender & Equality Commission -vs- The IEBC & Others, High Court Petition No. 147 of 2013, the three-judge bench in that case (Lenaola, Ngugi and Majanja JJ) expressed itself as follows:“(84)Although the principles we have set out above apply equally to parliamentary seats, our position regarding these seats was clearly spelt out in our ruling of 25th March 2013. Members of the Senate and National Assembly nominated under Articles 97(c), 98(1) (b), (c) and (d) of the Constitution were Gazetted on 20th March 2013 by Gazette Notice No. 3508. Upon such gazettement they became members of the respective houses of Parliament. Under Article 105 of the Constitution, a question of determination of membership can only be determined by way of an election petition.”

67. The petitioner thus submits that this Court is the proper forum for the determination of this Petition as it concerns the gazettement of the nomination of the Petitioner to the County Assembly of Mandera, relying on authority in case of Rosemary Njeri Nyambura v Independent Electoral and Boundaries Commission & 2 others [2015] eKLR, as follows:

68. That Petitioner in her Petition lays the basis and outlines the sequence of events which ought not to be construed that the course of action arose before the gazettement. That the grounds in support of the Petition is not the course of action that arose on the 9th of September 2022, whereby the 1st and 2nd Respondents failed to gazette the Petitioner as a nominated member of County Assembly of Mandera.

69. That outline by the Petitioner to lay a proper ground to support the orders sought cannot be interpreted to mean seeking enforcement, review or appeal of the orders of the Political Parties Dispute Tribunal.

70. That the Petitioner insisted that this is not a pre-election nomination dispute but a gazettement dispute thus Article 88(4) of the Constitution remains a prerequisite for laying a claim before the Political Parties Dispute Tribunal and thus the issue of jurisdiction informed by the said Article 88(4) of the Constitution ought to have been raised at the Political Parties Dispute Tribunal where 1st and 3rd Respondents were parties. That the 3rd Respondents having entered into a consent at the Political Parties Dispute Tribunal are estopped from raising the issue of jurisdiction based on Article 88(4) of the Constitution.

71. The petitioner on without prejudice submitted that she exhausted the dispute resolution mechanisms outlined in law. That after the IEBC refused to admit/file its complaint, the Petitioner filed its complaint before the Political Parties Tribunal as both the PPDT and IEBC have concurrent jurisdiction to determine disputes arising out of nomination, as it was held in the Supreme Court case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others the Court held as follows: -{Par. 68} So as to ensure that Article 88 (4) (e) of the Constitution is not rendered inoperable, while at the same time preserving the efficacy and functionality of an election Court under Article 105 of the Constitution, the Court developed the following principles:(i)all pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT, as the case may be, in the first instance;(ii)where a pre-election dispute has been conclusively resolved 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, such dispute shall not be a ground in a petition to the election Court;(iii)where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to 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; the High Court shall hear and determine the dispute before the elections, and in accordance with the Constitutional timelines;(iv)where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a petition to the election Court;(v)the action or inaction in (iv) above shall not prevent a person from presenting the dispute for resolution to 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, even after the determination of an election petition;(vi)in determining the validity of an election under Article 105 of the Constitution, or Section 75 (1) of the Elections Act, an election Court may look into a pre-election dispute if it determines that such dispute goes to the root of the election, and that the petitioner was not aware, or could not have been aware of the facts forming the basis of that dispute before the election.

72. That the Supreme Court in the case of Silverse Lisamula Anami v Independent Electoral & Boundaries Commission & 2 others [2019] eKLR held as follows: -{Par. 54} “How do we resolve the apparent conflicting positions taken by the Court of Appeal and election Courts? 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.”

73. This court was urged to look at the sequence of events as laid in the Petition, that the Political Parties Tribunal issued orders on 4th September 2022 to the effect that the 1st and 2nd Respondents were barred from gazeting the party list for nominated candidates for Mandera County Assembly, Gender Special seats until it is reconstituted and amended in compliance with the consent order, which was ignored and/or neglected.

74. That gazettement of the nominated candidates on 9th September 2022, by operation of the law rendered Political Parties Dispute Tribunal functus officio.

75. She cited Kennedy Moki vs. Rachel Kaki Nyamai & 2 others [2018] eKLR, where it was held as follows:“56. Notwithstanding the foregoing, we are alive to dicta which state that an election court is the proper forum at which to challenge by way of petition nomination disputes. On our part, having reviewed the case law, we are persuaded that the dicta in Kipkalya Kiprono Kones vs. The Republic &Another Ex-parte Kimani Wanyoike & 4 Others [2006] eKLR is good law where it was held that an election petition was the only valid means of challenging an election. All other proceedings before PPDT or Judicial Review are not proceedings challenging the declared results of an election and such proceedings cannot vitiate or validate the declared results of an election. We are also persuaded with dicta in Mwihia & another vs. Ayah & another [2008] 1 KLR (EP) 450 where it was held that nominations to stand for elections are part of the election process and as such, they could only be challenged after the elections by way of an election petition. We are further convinced that the decision in Wamboko vs. Kibunguchi & another, (2008) 2 KLR 477, is good law where it was held that an election court has jurisdiction to hear and determine a petition where one of the issues is nomination of a candidate - as nomination is a process of election.”

76. That the Petition herein is not an appeal or review or extension of the proceedings of the Political Parties Dispute Tribunal proceedings. The Petitioner merely lays basis and grounds for grant of orders sought in the Petition by referring to the events at the Political Parties Tribunal as it was observed in the case of Margaret Nyathogora & 5 others v I.E.B.C & 14 others [2018] eKLR as follows:{Par.71} “Apart from repeating the decision by the PPDT this court has sought to examine the constitutional and statutory requirements for valid nominations, as well as the legality of the decision by the PPDT, which was basically hinged on the non-inclusion of 'ethnic minority”

77. On PPDT being rendered the functus officio the Court of Appeal in Aden Noor Ali v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR held as follows: -"From the above, it is clear that what was before the learned judge was an election petition in respect of an election through nomination to a special seat of a member of the National Assembly, and a review of the judgment makes it clear that the learned judge appreciated that she was determining an election petition and not an appeal. This is evident from the remark in the judgment that the “...court was sitting as an Election Court and not appellate Court” and that the judgment of the PPDT was not therefore an appeal before the learned judge. This notion is further support, by the provisions of the Constitution and electoral law appertaining to election through nomination, that were set out and the analysis of the facts against those provisions to reach a finding on the validity of the nomination and gazettement of the 3rd appellant to the National Assembly. Particular regard was had for whether the political party and the IEBC, as the entities responsible, complied with the law during the nomination process. In its determination of whether the nomination of the 3rd respondent was valid, the court considered the criteria necessary for nominees to the party lists, and whether it was complied with. Conversely, the only reference to the PPDT was in addressing the appellant’s complaint concerning the orders of the PPDT and whether or not the respondents complied with those orders. We do not think that such reference can be construed to be a determination of an appeal. In all respects, when the judgment is analyzed, it is clear that the learned judge was dealing with an election petition and not an appeal, and we find the appellant’s allegation in respect of this issue to be unfounded.

78. The High Court at Kakamega in Election Appeal No. 02 of 2018 Alexander Khamasi Mulimi v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR held (At Par. 41) that an election is not a one single event but a process. Party nominations is part of the electoral process… that an election court is not precluded from enquiring whether a party which ignored to comply with the orders of such a tribunal as the PPDT can be said to have validly nominated its candidates.43. There was no allegation that the appellant was unqualified to be nominated as a member of County Assembly. There was no allegation by IEBC that the position he had been nominated for, for minority was not recognized in law or that he did not qualify for it. The appellant forgo the contest for Maliakalo ward on promise that he would be offered the first slot in the party’s list of nominees for County Assembly. The party benefited in that it did not conduct repeat elections as ordered by the Internal Disputes Resolution Committee which order was confirmed by the High Court. It was obvious that in ranking the appellant in position number one in the party priority list gave him a higher chance of being nominated than the eventual rank of position number 4. The appellant had legitimate expectation of being appointed member of County Assembly by being ranked number one in the party’s preference list. I hold that the 2nd respondent was bound by the consensus agreement unless it could be proved that it was illegal. There was no such a contention.44. The tribunal ordered the 2nd respondent to restore the name of the appellant as number one in the party’s priority list that was sent to the 1st respondent. The party did not appeal the decision of the tribunal neither did it comply with the decision of the tribunal. The order of the tribunal was part of the electoral process. As a political party and a public entity, the 2nd respondent was under duty to uphold the rule of law and promote constitutionalism. It could not do so when it acted in utter contempt of a legally binding order of a tribunal. It was meaningless for the parties to have followed the laid down procedure only for the 2nd respondent to ignore the outcome. It could not be allowed to benefit from its own contempt. It is therefore my considered view that the nominees for ANC party were not validly nominated by their party as the 2nd respondent failed to comply with the order of the PPDT. The trial court should in the circumstances have enforced the decision of the tribunal, subject to the proper joinder of parties.

79. That in Silverse Lisamula Anami v Independent Electoral & Boundaries Commission & 2 others [2019] eKLR held {Par. 54} that 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.”

Court’s Determination 80. I have duly read and considered the very elaborate and extensive written submissions, by the respective counsels herein including the 4th ,6th -15th Respondents supplementary submissions). I have also read and considered the relevant provisions of the Constitution of Kenya 2010, and statutes and rules as well as the cited authorities. Two basic issues come up for determination and which will be handled all together as appropriate.i.Whether the 5th respondent’s preliminary objection has met the legal threshold of a preliminary objectionii.Whether the preliminary objection is merited or not.

81. On the 1st issue of whether the 5th respondent’s preliminary objection meets the legal threshold of a preliminary objection; I have looked at all the counsel’s submissions and find they are all in agreement generally on what a P.O is. In Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd [1969] E.A 696, the learned judge observed that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court among others.

82. Further, in the same case, Sir Charles Newbold, P. while expressing his view as to what constitutes a preliminary objection stated as follows:A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

83. In the Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR 1. Where Nyarangi J.A. held as follows:'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

84. A challenge to the jurisdiction of the court indeed qualifies to be handled as a P.O. In Macharia and Another -Vs- Kenya Commercial Bank Ltd & 2 Others [sup ct Civil Appl. No. 2 of 2011] (UR), where the Court held as follows was cited: -“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 itself jurisdiction exceeding that which is conferred upon it by law. We agree with the counsel for the first and second respondents in his submission that the issue as to whether a Court of Law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter for without jurisdiction the Court cannot entertain any proceedings.”

85. It was held in the case of Sella Rose Anyango v Attorney General & 2 others [2021] eKLR as follows:“It is no doubt that, in order for a preliminary objection to be successful three elements must be satisfied. The preliminary objection must raise a pure point of law; all facts pleaded by the other side should be correct and agreed upon and that there should be no facts that need to be ascertained…The Respondent has not met all the requirements. On the first element, the Respondent claim that the Petition is an ordinary suit disguised as a Constitutional Petition. I agree with the holding in Moses Naula & 358 others v. Attorney General & 4 others [2014] eKLR (Supra) as raised by the Petitioner, that in order to determine such a question there must be an investigation into the facts of the case. This therefore fails the first test. On the second element, the Respondent having filed a Replying Affidavit dated 23rd February 2021 denying the allegations made by the Petitioner in her Petition, the second test similarly fails. On the final requirements, I have already determined that certain facts must be ascertained in order to determine whether the Petition meets the Constitutional threshold. I therefore find the preliminary objection fails the final test.”

86. I have looked at the subject notice of the P.O dated 11/10/2022 and crust of the PO is evident in the 2nd, 4th/5th and 6th limbs of the Notice.

87. The 2nd limb of the PO as to whether petition relate to a pre-election nomination dispute which are the preserve of the IEBC; I have looked at the petition as drawn and find that it lays a background to the dispute as arising from the prelection processes. As to whether this background make this dispute to come with the ambit of a pre-election dispute so as to be adjudicated upon under the dispute resolution committee as stipulated under article 88(4) of the constitution, section 77(1) of the Elections Act 2011and section 4 of the IEBC Act 2011; this is an issue the subject of proof as it can only be ascertained upon full trial of the Petition and on consideration of the evidence. Delving into evidentiary matters at this stage offends the long held and reiterated position that PO must not delve into contested facts. In fact, the court declines the invitation into making any determinations touching on matters of fact as clearly parties are not in agreement on the correctness of the facts in this case. A look at the petition and the Response to the petition as filed by the Respondents herein clearly show that there are matters of fact that petitioner and respondents contest.

88. Similarly, the import and purport of the proceedings and orders emanating therefrom the Political Parties Dispute Tribunal (“PPDT”) under Complaint No. E107 of 2022, Halima Billow Omar vs United Democratic Movement; Independent Electoral & Boundaries Commission; and Registrar of Political Parties are issues that have attracted diverse interpretations and understanding.

89. In fact, the issue of whether the petition herein amounts to an appeal /or review against the decision of Political Parties Dispute Tribunal (“PPDT”) under Complaint No. E107 of 2022, Halima Billow Omar vs United Democratic Movement; Independent Electoral & Boundaries Commission; and Registrar of Political Parties is testament enough that matters of contested facts will inevitably have to be considered.

90. There is no serious contest as to the jurisdiction of IEBC and PPDT in pre-election nominations disputes as provided hereunder:a.Article 88 (4) (e) of the Constitution of Kenya, 2010, provides:"The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, 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 election results.b.The same is reflected in the Elections Act, 2011 as well as the Independent Electoral and Boundaries Commission Act, 2011. c.Section 74 (1) of the Elections Act, 2011 provides that:(1)Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be 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 election results.d.Section 4 (e) of the Independent Electoral and Boundaries Commission Act, 2011 provides that:As provided for by Article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, 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 election results.

91. To that extent I am in total agreement with the 5th Respondents submissions that the Constitutional and legislative provisions above intended that the resolution of pre-election disputes relating to the nomination of candidates falls under the exclusive jurisdiction of the 1st Respondent herein while all post-election disputes would be under the domain of an Election Court.

92. What I am not in agreement with is the submission that even after gazettement as was done herein vide (Gazette Notice no. 10712 Vol.CXXIV-NO186 dated 9/9/2022) that disputes on this gazettement can and ought to be handled under the pre-election dispute resolutions mechanisms under the IEBC and or PPDT. What is obvious beyond any peradventure is that upon the above gazettement of 4-15 Respondent as members of the County Assembly of Mandera by the 1st and 2nd Respondents, any dispute as relates to this nomination can only be challenged and resolved by way of an election petition. The Elections Act Section 75 (1A) provides that, “A question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice.”

93. I am well alive to the decision of Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others; Ahmed Ali Muktar (Interested Party) [2019] eKLR where the question of whether an election court has jurisdiction to determine pre-election disputes. The Supreme court at paragraph [68] stated to the effect that to ensure that Article 88 (4) (e) of the Constitution is not rendered inoperable, while at the same time preserving the efficacy and functionality of an election Court under Article 105 of the Constitution, the Court developed the following principles:(i)all pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT, as the case may be, in the first instance;(ii)where a pre-election dispute has been conclusively resolved 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, such dispute shall not be a ground in a petition to the election Court;(iii)where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to 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; the High Court shall hear and determine the dispute before the elections, and in accordance with the Constitutional timelines;(iv)where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a petition to the election Court;(v)the action or inaction in (iv) above shall not prevent a person from presenting the dispute for resolution to 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, even after the determination of an election petition;(vi)in determining the validity of an election under Article 105 of the Constitution, or Section 75 (1) of the Elections Act, an election Court may look into a pre-election dispute if it determines that such dispute goes to the root of the election, and that the petitioner was not aware, or could not have been aware of the facts forming the basis of that dispute before the election.

94. Flowing from the above authority and directions from the Supreme court the issue in this current PO is whether pre-election dispute has been conclusively resolved by the IEBC, PPDT and whether the petitioner knew or ought to have known of the facts forming the basis of a pre-election dispute, and choose through any action or omission, not to present the same for resolution to the IEBC or PPDT.

95. I am guided by authority in Republic v Transition Authority & Another Ex parte Kenya Medical Practitioners, Pharmacists & Dentists Union (KMPDU) & 2 Others, JR No. 317 of 2013, the Court stated that:"…, where there is an alternative remedy provided by an Act of Parliament which remedy is effective and applicable to the dispute before the Court, the Court ought to ensure that that dispute is resolved in accordance with the relevant statute. Accordingly, we agree with the decision in Pasmore vs. Oswaldtwistle Urban District Council [1988] A C 887 that where an obligation is created by statute and a specific remedy is given by that statute, the person seeking the remedy is deprived of any other means of enforcement… Courts and Tribunals cannot be said to be promoting alternative dispute resolution mechanisms when they readily entertain disputes which ought to be resolved in other legal forums. Accordingly, we agree that where there is an alternative remedy and procedure available for the resolution of the dispute that remedy ought to be pursued and the procedure adhered to.

96. The proof of ‘exhaustion of prescribed, and or alternative remedy’ can be safely and conclusively proved by evidence which is in the province of factual exploration.

97. This decision is well fortified by the Supreme Court in the case of Silverse Lisamula Anami v Independent Electoral & Boundaries Commission & 2 others [2019] eKLR held as follows: -"{Par. 54} “How do we resolve the apparent conflicting positions taken by the Court of Appeal and election Courts? 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.”

98. From the foregoing, I am not persuaded and I so hold that this PO is substantially hinged on an in-depth analysis of potentially, or evident contested facts and evidence. It does not meet the threshold of a pure point of law as is known in law.

99. On whether as submitted by 5th respondent that the Petition herein seeks to enforce the Orders of the Political Parties Dispute Tribunal in PPDT Complaint Number E107 of 2022 and on whether as this court cannot place reliance on the decision of PPDT and whether it can enforce the same through this election Petition; I find that the supreme court clarified this in the above Silverse Lisamula Anami v Independent Electoral & Boundaries Commission & 2 others [2019] eKLR. I however observe that the conclusive determination that this should or ought to apply in the current petition will only be known at trial and not at this preliminary stage. I however decline the invitation by the Petitioner to rely on the application dated 1/11/2022 as its in abeyance until determination of this PO as rightly submitted by the 4th, 6th -15th respondents in the supplementary submissions.

100. I have looked at Part of the prayers in the Petition couched as follows:a.A declaration be and is hereby issued that the Gender Top-Up List for Mandera County for the United Democratic Movement as contained in Gazette Notice No. 10712, Vol. CXXIV - No. 186 published by the 1st and 2nd Respondents on 9th September, 2022 is null and void for reason that the said publication was done in contravention of the Court Orders of 15th August, 2022 as issued on 16th August, 2022 and Court Order of 4th September, 2022 in Political Parties Dispute Tribunal Complaint No. E107 of 2022, Halima Billow Omar Vs United Democratic Movement and Others.b.An order be and is hereby issued directing the 1st and 2nd Respondents, the Independent Electoral and Boundaries Commission and The Chairman of the Independent Electoral and Boundaries Commission to Gazette Halima Billow Omar, as nominee number three (3) in the 3rd Respondent’s (United Democratic Movement Party) special seat for Gender Top Up List for Mandera County Assembly in compliance with Court Orders of 15th August, 2022 as issued on 16th August, 2022 and Court Order of 4th September, 2022 in Political Parties Dispute Tribunal Complaint No. E107 of 2022, Halima Billow Omar Vs United Democratic Movement and Others.c.An order be and is hereby issued directing the 1st and 2nd Respondents, the Electoral and Boundaries Commission and The Chairman of the Independent Electoral and Boundaries Commission to adhere to and comply with the Court Orders of 15th August, 2022 as issued on 16th August, 2022 and Court Order of 4th September, 2022 in Political Parties Dispute Tribunal Complaint No. E107 of 2022, Halima Billow Omar Vs United Democratic Movement and Others.

101. In my respectful view and my finding the effect of the manner in which the petition is drafted and the prayers as particularized is too early to call. It is premature to say that the petition will succeed and be allowed in terms as prayed so as to amount to an enforcement of the Orders of the Political Parties Dispute Tribunal in PPDT Complaint Number E107 of 2022. In any event even the petitioner is not in agreement with the position of the 5th respondent that she is seeking to enforce the decision of the PPDT and vice versa is the position of the Respondents. The net effect is that there is no agreement on this fact and this should safely be left for determination at trial and not ‘summarily’ through this P.O. This should not prejudice any party. The decision in Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177 as to what amounts to a question of fact and a question of law is instructive."In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts …In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.” (Emphasis mine)

102. In view of the foregoing the court hereby makes a final determination that the 5th Respondent’s P.O herein in its several limbs jointly and severally per the notice of P.O lacks merit and is dismissed in its entirety with costs to the Petitioner as against 5th respondent as she is the architect of the P.O under consideration.

RULING DATED AND READ VIRTUALLY VIA TEAMS PLATFORM THIS 15TH NOVEMBER 2022P.W. WASIKESENIOR RESIDENT MAGISTRATEIn the presence ofCourt AssistantFor the PetitionerFor the 1st and 2nd RespondentFor the 3rd RespondentFor the 4th, 6th -15th RespondentFor the 5th Respondent