The High Court has struck out two petitions filed by South Mugirango MP Silvanus Osoro and three voters namely Michael Ochieng', Asola, Eric Githinji and Ashford Koome Mbogo.

The petitioners had challenged the Supreme Court’s power to declare a winner of a presidential election should a re-tallying reveal a clear winner.

Osoro and the three voters wanted an interpretation of the law on the powers conferred to the Independent Electoral and Boundaries Commission (IEBC) on the declaration of presidential election results and if the Supreme Court can Order the IEBC to declare such a winner or declare a winner.

The petitions opined the Supreme Court could only invalidate a presidential election and order a fresh election.

Osoro and his team wanted the High Court to declare that Section 80 (4) of the Election Act is unconstitutional since it provides that an election court can direct the commission to issue a certificate to a president.

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Silvanus Osoro. PHOTO/FACEBOOK

“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,” the disputed section says.

However, Justice Hedwig Ong’udi found that the High Court’s Constitution and the Human Rights Division do not have the authority to hear the case Osoro and the three voters filed.

"I find that under Article 140 (2) of the constitution, the Supreme Court hears the presidential elections and gives a decision. It is not for this court to direct the Supreme Court on what to do or not do," Ong’udi ruled.

“The supreme court shall have exclusive original jurisdiction to hear and determine disputes relating to the election to the office of president arising under Article 140."

Justice Hedwig Ong’udi 

Ong'undi based the decision on the provision of Article 163(3)(a) of the Constitution.

Ong’udi further clarified it is the Supreme Court which has the exclusive jurisdiction to deal with matters related to the presidential election.

Osoro and his team vowed to move to the Court of Appeal to challenge Ong’udi’s ruling.

"Our case was a constitutional petition, not an election petition. We were seeking the court's interpretation of and whether section 80(4)(a) of the Election Act is inconsistent with the constitution, but unfortunately, the judge has declined the petition and our application to have the same placed before the Chief Justice for directions even before hearing us," Koome said.