1.The petitioner in this case is a life member of the 2nd respondent. By way of a brief background, the petitioner in this case filed her petition claiming that the 4th and 5th respondents were not eligible for nomination as members of minority and marginalised communities. According to the petitioner the nomination of the 4th and 5th respondents as members of the county assembly of Bungoma was invalid. She seeks inter alia an order of injunction to restrain the 3rd respondent from swearing in the 4th and 5th as members of the county assembly; the quashing of the nomination of the 4th and 5th respondents contained in the gazette notice No Vol Cxxiv No 186; and consequently and order directed at the 1st respondent to de-gazette the 4th and 5th respondent as nominated members of the County Assembly Bungoma.
2.The 1st, 2nd, 4th and 5th respondents have opposed the petition by filing of their respective notice of preliminary objections. The 1st respondent in its preliminary objection dated September 26, 2022 challenged the petition on the following grounds:1.This court lacks jurisdiction to hear and determine this petition in view of the provisions of article 88 (4) (e) of the Constitution, section 74 of the Elections Act, 2011 and section 39 of the Political Parties Act.2.The petitioner’s petition is incompetent and legally untenable in view of the provisions of article 88 (4) (e), section 74 (1) of the Elections Act and regulation 99 (2) of the Election (General) Regulations 2012 which vested the 1st respondent with powers to settle nomination disputes.
3.The 1st respondent in its submissions argue that the 4th and 5th respondents were deemed officially elected as nominated members of Bungoma County Assembly after the gazettement of their nominations. Consequently, their membership to the said County Assembly can only be challenged in accordance with section 75 (1) (a) of the Elections Act. While relying on the provisions of rule 6 of the Elections (Parliamentary and County Elections) Petitions Rules 2017, the 1st respondent submitted that the dispute ought to have been filed in form of an election petition before an election court with competent jurisdiction, in this case, a resident magistrate’s court. They cited the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited (2012) eKLR where the court stated that a court’s jurisdiction flows from either the Constitution or legislation or both and a court cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. The 1st respondent submits that this honourable court cannot exercise jurisdiction over an electoral dispute which falls within the exclusive competence of a different court.
4.The 2nd respondent in its preliminary objection dated March 8, 2022 has raised the following grounds:1.That where upon the petition before this court is clothed as a constitutional petition, the same is actually an election petition in disguise. Since among the prayers sought for is “…an order quashing the nomination of the 4th and 5th respondents as members of the County Assembly of Bungoma…and An order to compel the 1st respondent to de-gazette the 4th and 4th respondents as nominated members of county assembly, Bungoma from the marginalized list.”2.Being that the petition contests the nomination of the 4th and 5th respondents as Members of the County Assembly of Bungoma, a nomination which was integral part of the electoral process. Thus any aggrieved party would have to initiate the process of ventilating grievances by way of an election petition in accordance with section 75 of the Elections Act.3.This honourable court therefore lacks jurisdiction to hear and determine the constitutional petition herein as the same offends the provisions of section 75 (1A) of the Elections Act which jurisdiction is under pinned in article 87 (1) of the Constitution.
5.The 2nd respondent submits that the petitioner aggrieved with the nomination of the 4th and 5th respondents ought to have filed an election petition in accordance with section 75 of the Elections Act. They maintained that the court does not have the jurisdiction to hear and determine the petition as presented and placed reliance in the case of Orange Democratic Movement v Yusuf Ali Mohamed & 5 others  eKLR.
7.The 3rd respondent in his submissions argue that the dispute in the petition relates to nomination of candidates to Bungoma County Assembly. In view of article 88 (4) (e) of the Constitution and section 74 (1) of the Elections Act, resolution of such a dispute lies within the IEBC. This is in the sense that the commission is clothed with the responsibility of settlement of electoral disputes including disputes relating to nominations but excluding election petitions.
8.The 4th respondent in its preliminary objection dated March 7, 2023 raised the following grounds in opposing the petition:1.That the court lacks jurisdiction to hear and determine the petition in view of provisions of article 88(4) (e) of the Constitution of Kenya 2010, section 74 (1) of the Elections Act 2011 and section 39 of the Political Parties Act.2.That the petition is bad in law and incompetent in view of the Supreme Court of Kenya Ruling in the case of Supreme Court petition No 1 of 2015 Moses Mwicigi & 14 others v IEBC & 5 others.3.That this is an election petition disguised as a constitutional petition.
10.She also cited the case of Supreme Court Petition No. 1 of 2015 Moses Mwicigi & 14 others v I.E.B.C & 5 others and urged the court to strike out the petition with costs. In any event, the 4th respondent argues that the petition has been overtaken by events as the events they seek to restrain has already happened and the 4th respondent has already been gazetted and sworn in as a nominated member of the County Assembly.
11.The 5th respondent contends that this court lacks the jurisdiction to entertain the petition in his preliminary objection dated March 8, 2023. The 5th respondent submits that it was not in issue that he was gazetted and sworn in as a member of the County Assembly. The petitioner’s prayers suggest that she requires the court to interrogate the process of nominating, gazetting and the swearing in of the 5th respondent. The 5th respondent argues that the petitioner’s first port of call ought to have been her political party or the 1st respondent or the political parties’ tribunal. The suit was instituted after the 5th respondent’s name was published in the gazette notice as a nominated member of the county assembly of Bungoma. This act of publication shifted the mandate of challenging any validity of his nomination to an elections court, the resident magistrates’ court. He relied on the decision of Supreme Court petition No 1 of 2015 Moses Mwicigi & 14 others v IEBC & 5 others.
12.The petitioner opposed the preliminary objections filed by the respondents and maintained that the court has the jurisdiction to entertain the petition pursuant to article 165 (3) (a) & (b) of the Constitution of Kenya. The petition is justified to institute proceedings claiming that a right or fundamental freedom in the bill of rights has been denied or violated pursuant to article 22 of the Constitution.
Analysis And Determination
13.I have considered the arguments by the parties and the gravamen of the petition is the nomination of 4th and 5th respondents and their subsequent gazettement by the 1st respondent as members of the County Assembly, Bungoma. It is therefore not disputed that the 1st respondent has already published in the gazette notice No 10712 Vol cxxiv-No 186 of September 9, 2022 the 4th and 5th respondents as the nominated candidates for the 2nd respondent.
14.The petition herein was filed on September 20, 2022 after the Members of the County Assembly of Bungoma who were nominated based on the party lists had been gazetted by the 1st respondent. The gazetted nominees are now members of the County Assembly of Bungoma. Courts have consistently maintained that once nominees have been gazetted any issue on their nomination can only be challenged by way of an election petition. This was the position in Vitalis Ojuang Odek v Independent Electoral and Boundaries Commission & 3 others  eKLR where the court held that:
16.The petitioner in her submissions argues that the petition is a constitutional petition. However, the prayers sought in the petition do not touch on infringement on any provision of the Constitution of Kenya. Instead, the prayers touch on the nomination and gazettement of the 4th and 5th respondents as members of the County Assembly. Therefore, I find that the petition is in the nature of an election petition challenging the election of members of the County Assembly of Bungoma through nominations.
17.Consequently, I find that this court has no jurisdiction to consider a dispute concerning an election through nomination as thepetition ought to have been filed in the Magistrates Court. The result is that the preliminary objections filed by the respondents are therefore merited. The respondents are awarded costs.