1.On August 4, 2022 the Appellant/Applicant filed an application under certificate of urgency seeking the following orders:
2.The Application was certified urgent and placed before us for hearing on August 8, 2022 at 12.00 pm. Upon hearing the parties’ arguments, we dismissed the application and reserved the reasons for a later day pursuant to Rule 34(7) of the Court of Appeal Rules. We now give our reasons for dismissing the Notice of Motion dated 22nd July 2022.
3.By way of background, it is important to set out the facts of this case in order to have a broad picture of what transpired at the Dispute Resolution Committee and in the High Court.
4.This matter relates to the General Elections that were held on the 9th of August 2022. It is important to note that the date of the General Election is set pursuant to the provisions of article 101 ofn Constitution which provides as follows:
5.Pursuant to the said article of the Constitution , the 3rd Respondent that is, the Independent Electoral and Boundaries Commission set the 9th of August 2022 as the date for the General Elections.
6.The Appellant/ Applicant offered himself as an independent candidate pursuant to Article 85 of the Constitution. His main grievance is that the 2nd Respondent denied him a clearance to vie for the position of Member of National Assembly, Embakasi West Constituency as an independent candidate. He stated that he had complied with the necessary requirements and that he was unfairly locked out by the 2nd Respondent on the basis that he did not submit passport photographs in the right format and that such refusal was draconian and violated his political and other constitutional rights.
7.The Applicant being aggrieved with the decision of the 2nd Respondent filed complaint no. 322 of 2022 before the 1st Respondent. Upon hearing the parties, the 1st Respondent rendered itself in the following terms;
8.The Applicant being aggrieved by this decision filed Judicial Review Application No. E106 of 2022 on June 30, 2022. The High Court upon hearing the parties rendered its Judgment on July 15, 2022 and the learned Judge in dismissing the applicant’s case held as follows.
9.Again, the Applicant was aggrieved by the High Court’s decision and he therefore filed the instant Application and lodged a Notice of Appeal on the 26th of July 2022 and the Record of Appeal on the August 4, 2022.
10.It was important for us to set out the facts of this case to have a broad view of what transpired before the 1st Respondent and in the High Court and the reason why the Applicant was locked out of the general elections held on August 9, 2022.
11.All the Parties filed written submission and highlighted them during the hearing.
12.At the core of their submissions were the applicable principles in an application brought under Section 5 (2) (b) of the rules of this Court.
14.In the exercise of this discretion, the court must the satisfied on the twin principles which are that the Appeal is arguable and that if orders sought are not granted and the appeal succeeds, the appeal will be rendered nugatory. The jurisdiction is original and discretionary as stated by this court in Stanley Kangethe Kinjanjui -vs- Tony Keter & 5 other  eKLR in which this court stated inter alia:
16.We have carefully considered the grounds set in the motion and the Memorandum of Appeal. Although an arguable appeal is one that will not necessarily succeed, our analysis of the proceedings and the decisions of the 1st Respondent and the High Court cast doubt on the arguability of the appeal. It is apparent that the Applicant appears to concede in the WhatsApp messages to the 2nd Respondent that he had challenges meeting the statutory deadlines that all contestants in the general election had to comply with. In view of this concession, the Applicant fails at this stage to demonstrate that the intended appeal is arguable. We further observe that the orders being sought by the Applicant, if granted, will adversely affect candidates for the said parliamentary seat who either by default or oversight were not made parties to these proceedings thus will end up being condemned without being heard. Taking in account the admission by the Applicant that he was unable to comply with the timelines and the fatal flaw of not joining all the parties that will be affected by this Appeal, the chances of its success is doubtful. In Seventh Day Adventist Church E.A Ltd (Nairobi East S.D.A. Church) vs Strathmore Educational Trust Registered Trustees Kenya & 2 Others (2020) eKLR, this court found an intended appeal as one that is not arguable following a concession by the Applicant therein that there was no written agreement for the alleged purchase of a parcel of land.
17.Having found that the application has failed to meet the threshold in the first principle of arguability of the appeal it is not necessary for us then to delve into the consideration of the nugatory aspect of the application.
18.We find that this application has no merit, and we order that it be and is hereby dismissed with costs.