The High Court has dismissed two petitions filed by South Mugirango MP Sylvanus Osoro and two other petitioners seeking to prevent the Supreme Court from announcing a presidential election winner based on a re-count of votes.
Judge Hedwig Ong’udi of the Milimani Law Courts denied the motions on the grounds that the High Court lacks the jurisdiction to order the Supreme Court, which is superior.
“I find that 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.
The petitioners were also seeking to have the court interpret Section 80(4) of the Election Act, on the powers conferred to the Independent Electoral and Boundaries Commission (IEBC) Chairman on the declaration of presidential election results.
Justice Ong’udi cited her ruling on provisions of Article 163(3)(a) of the Constitution, which provides that the Supreme Court has the jurisdiction of handling all election disputes involving presidential elections.
“From the above, it is clear that it is the Supreme Court which has the exclusive jurisdiction to deal with issues/disputes related to a presidential election,” noted the judge.
MP Osoro and the three other petitioners among them Ashford Koome Mbogo, Michael Ochieng Asola and Eric Githinji had called for the High Court to declare Section 80(4) unconstitutional since it provides that the Supreme Court can direct the IEBC to issue a certificate to the election’ winner.
The said section reads: “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.”
MP Osoro, in his petition, said: “In essence, the presidential election results being hotly contested and of a higher political voltage than the other elective positions, the Supreme Court should be extremely cautious in assuming jurisdiction under Section 80(4) of the Elections Act.”
“The Supreme Court sitting as an election court in presidential election disputes can only hold that the election results are valid or invalid and no more. The framers of the Constitution did not intend that Parliament would legislate on disputes relating to presidential elections.”
