NAIROBI, Kenya, Aug 24 – The High Court in Milimani Nairobi has struck out two petitions filed by South Mugirango MP Silvanus Osoro and three voters seeking to challenge powers of the Supreme Court to declare a presidential election winner in the event of a retally of votes.
The petitioners had argued that the Supreme Court can only invalidate a presidential election and order for fresh polls but not declare a winner.
They also sought an interpretation of the law on the powers conferred to the Independent Electoral and Boundaries Commission (IEBC) Chairman on declaration of presidential election results.
But Justice Hedwig Ong’undi found that the High Court does not have the authority to hear and determine the case as filed by Mr Osoro and voters Ashford Koome Mbogo, Michael Ochieng Asola and Eric Githinji.
“I find under Article 140(2) of the Constitution the Supreme Court hears the presidential election petition and gives a decision. It is not for this court to direct the Supreme Court on what to do or not do,” Justice Ong’undi said while striking out the petitions.
MP Osoro and the voters wanted the High Court to declare that Section 80(4) of the Elections Act was unconstitutional since it provides that an election court can direct the IEBC to issue a certificate of election to a president.
In dismissing the suit, Justice Ong’undi based her decision on provisions of Article 163,(3)(a) of the Constitution, which provides that “the supreme court shall have exclusive original jurisdiction to hear and determine disputes relating to the election of the office of president arising under Article 140 (of the Constitution).”
“From the above it is clear that it is the Supreme Court which has the exclusive jurisdiction to deal with issues/disputes related to presidential election,” ruled Justice Ong’undi
The disputed section of the law that the petitioners sought interpretation of, gives the Supreme court the powers to declare the presidential election winner and also to direct the electoral commission to issue a certificate of the election to a presidential candidate upon recounting of the ballot papers cast.
It says that “an election court may by order direct the Commission to issue a certificate of election to a President, a member of Parliament or a member of a county assembly if upon recount of the ballots cast, the winner is apparent; and that winner is found not to have committed an election offence.”
