Mulki Abdullahi Adan v Independent Electoral and Boundaries Commission & 1 other

5. The application is supported by the affidavit of Mulki Abdullahi Adan, the applicant, sworn on 12th March 2025 and supplementary affidavit sworn on 9th April 2025. She annexed a memorandum of appeal in Mombasa Civil Appeal No. E046 of 2025 and deposes further that the record of appeal has been served upon all the parties to support the ground that the appeal raises arguable points. She also deposes that she is aware that the Interested Party has been made a party in Milimani High Court Case No. HCCHRPET/E369 of 2024 where she is challenging her political party members and so she will not suffer any prejudice if the proceedings herein are stayed since her interests are being taken care of in that matter where she is actively involved. 6. The application is opposed by the Interested Party, Mary Charles Kalinga through a replying affidavit sworn on 19th March 2025. Many of the depositions therein are on issues of law which would best be addressed through submissions. I will therefore not belabour them here. 7. The Interested Party deposes that the applicant has not shown sufficient cause to warrant the court to issue the orders sought. Further that, just as for the other parties, it is in the best interest of the petitioner who having alleged that her constitutional rights have been breached by the decision in Mombasa High Court Election Petition No. E087 of 2023 to have this petition timeously determined. That otherwise her conduct of filing an appeal in the High Court Election Petition No. E087 of 2023, Court of Appeal Election Petition No. E002 of 2023 and Supreme Court Petition Appeal No. E014 of 2024 and the appeal against the ruling of this court that she now wishes to pursue demonstrates that she intends to frustrate the decision of the High Court at Mombasa in Election Appeal No. E081 of 2022 means that she intends to stay in office as the nominated Member of County Assembly (MCA) to the Kwale County Assembly. 8. She deposes further that the genesis of this matter is an election petition in Kwale Chief Magistrates Court Election Petition No. E002 of 2022 which dispute ended up at the Supreme Court but has now been tactfully turned into a constitutional petition with the sole intention of keeping the petitioner in office despite her nomination having been nullified. That the present application is therefore a hindrance to the hearing and disposal of the constitutional petition herein. 9. The IP deposes that the petitioner has not in the present application demonstrated how this court derogated in the exercise of its discretion in the decision sought to be stayed. She has not demonstrated that she will suffer prejudice if the proceedings herein are not stayed. 10. The respondents, the IEBC and the Speaker, County Government of Kwale did not file a response to the application. 11. Learned counsels for the applicant and the IP filed submissions urging their respective positions on the matter. 12. Learned counsel for the petitioner has set out in summary the grounds upon which the application is based and the grounds upon which the IP opposes the application. The summaries are as laid out above by this court in stating the parties’ cases. He submits that the petitioner has demonstrated that an appeal against this court’s ruling delivered on 28th February 2025 being Mombasa Civil Appeal No. E046 of 2025 is pending as she has filed and served a record of appeal in the matter. In support of the application, learned counsel referred to several decided cases on the factors the court will consider in an application for stay of proceedings. The cases are Milestone Games Limited v Consumer Federation of Kenya & 7 others [2025] KECA 453 (KLR), Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] KECA 378 (KLR). The citations of two other authoritis seems to be incomplete and I am unable to trace them immediately on the Kenyalaw website and copies have not been supplied to this https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 2

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court. All the same, from the summaries referred to by learned counsel they are also on the principles considered by the Court of Appeal on an application for stay of proceedings. 13. In his submissions learned counsel for the IP submits that stay of proceedings is a serious, grave and fundamental interruption in a party’s right to conduct a trial on the substantive merits of her case and therefore the court’s general practice is that stay of proceedings should not be imposed unless the proceedings, beyond all reasonable doubt, ought not to be allowed to continue. Therefore, according to learned counsel, the power to stay proceedings ought to be exercised sparingly and only in exceptional cases as it impacts on the right to expeditious trial. 14. Learned counsel has urged this court to take into account the nature of the matter, its history and the impact on the public interest. That this is an election matter whereupon the High Court on appeal, having nullified the nomination of the petitioner together with four others, her subsequent appeals to the Court of Appeal and the Supreme Court were dismissed on grounds that the two superior courts had no jurisdiction over an election petition of an MCA. 15. Learned counsel submits further that the petitioner seeks to overturn the decision of the High Court that nullified her nomination as an MCA and this offends the principle of res judicata. 16. According to the IP this application is a delay tactic by the petitioner to keep her in office until she serves her term which is against the decision of the High Court in Mombasa High Court Election Petition No. E087 of 2023. 17. The IP submits that the petitioner has not demonstrated any exceptional circumstance to warrant the order of stay of proceedings. That in any case, the exceptional circumstance is that there is need to expeditiously hear and determine the petition. That the petitioner ought to be the one urging for the expeditious determination of her petition and not delaying the same through filing of an appeal at the Court of Appeal. 18. In support of the submissions, learned counsel referred to the case of MRM aka RLM v SMRM [2024] KEHC 446 (KLR) in which the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) is cited. In the later case, the High Court, F. M. Gikonyo, J. while considering the issue of stay of proceedings referred to Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, where it was stated that: “ The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” “This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.” “It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 19. Before the ruling of the court on the petitioner’s application for stay of proceedings was delivered, while the matter was pending filing submissions by the respondents, the IP filed a notice of preliminary objection dated 27th May 2025 to the petition herein by the petitioner based on the following grounds: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 3

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a. The petition herein is disguised as a constitutional petition, when in fact it is an Election Petition, relating to the validity of the nomination of the petitioner to the County Assembly of Kwale which nomination was nullified by the High Court in High Court Election Petition Number E087 of 2023, and such a petition can only be commenced in the Election Court under Section 75 (1A) of the Elections Act. b. The orders sought by the petitioner seek to approve/uphold and/or validate the petitioner's nomination as an MCA to the County Assembly of Kwale which is the province and jurisdiction of the Election Court under Section 75(1)(A) of the Elections Act. This court sitting as a constitutional court is not clothed with jurisdiction to hear and determine the petition herein as the same offends section 75(1)(A) of the Elections Act. That this court lacks jurisdiction to hear the issues raised in the Petition dated 8th July, 2024 which relate to the validity of election by way of nomination of the Petitioner into the County Assembly of Kwale as it is not an Election Court. c. The orders sought in the petition will affect persons in the qualifying lists provided by Political parties to the IEBC, the 1st Respondent herein, who are not parties to the suit thereby demonstrating why this court is not the right forum for the petitioner's grievances. 20. The Interested Party therefore prays that the Preliminary Objection herein be allowed and the petition be struck out with costs. 21. The IP filed a supplementary affidavit sworn on 19th September 2025 in response to the replying affidavit by the petitioner. I have perused the same and I find that it reiterates the grounds in support of the preliminary objection. 22. The petitioner opposed the preliminary objection through a replying affidavit sworn by Mulki Abdullahi Adan on 13th September 2025. She deposes that the petition is not an election petition as it raises constitutional issues which can only be determined by a constitutional court. She deposes that the issues raised in the petition herein are extremely different from the issue raised in the Election courts and the Appeal Courts and the IP has not produced the proceedings in the Election Court and Appeal Courts for this court to appreciate how different they are. 23. The petitioner, the 1st respondent, Speaker of the County Assembly of Kwale and the IP filed submissions urging their respective positions on the preliminary objection. These are considered in the analysis and determination that follows. The ruling was scheduled for 29th October 2025. 24. On 13th October, 2025, again, before the court could deliver the ruling on the initial application and the preliminary objection, the petitioner came back to court with a fresh application seeking to arrest and stay this court’s ruling scheduled for 29th October 2025 and also to stay any further proceedings in this matter for reasons that the record of appeal in Mombasa Civil Appeal No. E046 had been filed and served upon all the parties. She also stated that if the appeal is allowed, even the preliminary objection by the IP would have no effect. The other grounds are the same as those advanced in the notice of motion dated 12th March 2025. 25. The application is supported by the affidavit of the petitioner Mulki Abdullahi Adan sworn on 13th October 2025 and again the depositions are a replica of the affidavit in support of the application dated 12th March 2025. 26. That application is again opposed by the IP through an affidavit sworn by Mary Charles Kalinga on 27th October 2025. She deposes that the present application is seeks the same orders as those sought https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 4

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by the petitioner in the application dated 12th March 2025 and therefore the issues herein are subjudice. The other responses mirror the IP’s response to the application dated 12th March 2025. 27. 28. On 11th November 2025, again before the court had even set a date for ruling on the earlier applications and the preliminary objection, Hussein Abdullahi Mayow filed a notice of motion application seeking the following orders: a. In the interim, the prevailing status quo be preserved and maintained, and that no party shall undertake any action that may alter, interfere with, or prejudice the existing state of affairs until the hearing and final determination of this instant application. b. The Applicant, Hussein Abdullahi Mayow, be joined as an Interested Party in this petition, being a member of the minority communities whose interests are directly aligned with and affected by the subject matter of the petition. c. Upon being joined, the Intended 2nd Interested Party be granted leave to file such documents and/or submissions as may be necessary in support of the Petitioner's case. The grounds in support of the application are that: a. The Petitioner and the Intended 2nd Interested Party are members of the small minority community within Kwale County, whose representation in the County Assembly forms the core of the present petition. b. The issues raised in the petition directly affect the Intended 2nd Interested Party and the minority communities represented by the Petitioner. c. The Intended 2nd Interested Party fully supports the petition and seeks to assist this Honourable Court in safeguarding the constitutional rights of the community, as well as those of other minority and marginalized groups, to fair representation and effective participation in governance. d. No prejudice will be suffered by any party if the Intended 2nd Interested Party is enjoined; on the contrary, his participation will assist the Court in determing the issues comprehensively and in the interest of the minority groups. 29. The application is supported by the affidavit of the 2nd Intended IP Hussein Abdullahi Mayow sworn on 11th November 2025. He that he, as well as the petitioner, are both members of one of the the Somali community, a minority in Kwale County, which is recognized within the County, and which the Petition seeks to ensure continues to enjoy fair and equitable representation in accordance with the Constitution of Kenya, 2010. That the minority communities in Kwale County have historically faced marginalization and underrepresentation in the affairs of the County Assembly and other organs of devolved government. That he is actively involved in various community initiatives and leadership forums within the minority community of the Somali in Kinango Sub-County, where he has continuously advocated for equitable political participation, inclusion, and representation of minority groups at the County level. 30. For that reason, he had a legitimate and direct interest in the outcome of the present Petition, which seeks to protect and promote the rights guaranteed under Articles 27, 38, and 174(e) of the Constitution, namely the right to equality, political participation, and the protection and recognition of the rights of minorities and marginalized communities. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 5

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31. Further that the Petition raises weighty constitutional issues that transcend individual interests and touch on the collective rights of the minority communities in Kwale County to have an effective voice and representation in governance in the instant case via the Petitioner. 32. Consequently, his joinder as an Interested Party will not only ensure that the minority communities concerns are fully represented but will also assist this court in receiving a balanced and comprehensive account of the historical and current challenges affecting the minority communities representation. He therefore wishes to fully support the Petitioner's case and will, upon being joined, place before the court additional material and perspectives that may aid in determining the real questions in controversy. 33. He deposes further that his participation will not occasion any delay, prejudice, or inconvenience to the Petitioner, the Respondents or the Interested Party, but will instead advance the overriding objectives of justice, participation, and fairness under Article 159 of the Constitution. 34. That it is therefore just, fair, and in the public interest that he be allowed to join the proceedings as an Interested Party to support the Petitioner and to represent the collective concerns of the minority communities. 35. I have considered the various applications herein as set out above and the preliminary objection raised to the petition by the 1st Interested Party. The preliminary objection raises an issue of jurisdiction of this court to determine this matter. It has been held in a myriad of cases that when an issue of jurisdiction is raised, the same has to be determined first before the court proceeds further. 36. But in the present case, there is a small hurdle that needs to be surmounted first. An issue of jurisdiction is capable of determining the petition finally. The question is whether an IP can then seek to have the case determined finally on the basis of a preliminary objection. 37. In her application dated 24th September 2024 seeking orders that she be joined as an Interested Party in the petition filed herein by the petitioner, the IP had also sought an order that the court sets aside or discharges the conservatory orders of injunction issued herein on 16th July 2024 pending the hearing and determination of the petition. In its determination of the second issue of setting aside or discharging the conservatory orders of injunction, this court, upon considering various authorities on the position of joinder of an IP in a matter found that her role as an IP would be limited and it would not be proper of her to take over and run away with the petition. No doubt, the preliminary objection she has raised is capable of literally running away with the petition and destroying it altogether. 38. However, that hurdle is surmounted by the fact that an issue of jurisdiction can be raised by the court itself at any time suo moto. In the case of Rafiki Enterprises Limited v Kingsway Tyres & Automart Limited [1996] KECA 199 (KLR) the Court of Appeal dealing with an issue of jurisdiction held that: “ Every court has a duty to determine whether or not it has jurisdiction in a particular matter.” 39. Now that the issue has been brought to the attention of this court, even if irregularly through an IP, the court cannot look aside as it will be shirking its solemn responsibility to determine whether or not it is seized of jurisdiction in the matter. Otherwise if it does not and yet the issue is valid, all that it does in the case will be a nullity. This was the position given by the Court of Appeal in the celebrated case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) where Nyarangi JA quoting from Words and Phrases Legally defined – Volume 3: I – N Page 113 said thus:“ By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 6

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is constituted and may be extended or restricted by the like mean. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the action and matters of which the particular court has cognizance of or as to the area over which the jurisdiction shall extend; or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal including an arbitrator depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction but except where the court or tribunal has been given power to determine conclusively whether the fact exists where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision a merit to nothing. Jurisdiction must be acquired before judgment. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Facts constitute the evidence before the court…The moment a court determines that it has no jurisdiction it has to down its tools and proceed no further” 40. On that basis, this court will proceed to determine the issue of the jurisdiction of this court to consider and determine the petition filed herein. If the issue was raised by the court suo moto the court would invite all the parties including the IP to make submissions on the issue before determining the matter. The submissions by the IP herein are therefore considered on that basis. 41. The IP submits that the petition herein is an election petition disguised as a constitutional petition. 42. The 2nd respondent, the Speaker of the County Assembly of Kwale on its part submits supporting the preliminary objection. He has submitted extensively on the petition being incompetent and also on the processes of election of a nominated Member of County Assembly as provided for under the law articles 88(4) and 177 of the Constitution, the Elections Act (Cap. 7) Laws of Kenya, the Independent Electoral and Boundaries Commission Act (Cap. 7C) Laws of Kenya and the County Government Act (Cap. 265) Laws of Kenya. Those would not be applicable for the present determination on the preliminary objection. He submits however that the Speaker’s mandate is in no manner whatsoever electoral and/or concerned with matters touching on the conduct and supervision of elections. 43. In relation to the preliminary objection, the 2nd respondent submits that this court is not an election petition court that is provided for under section 75 of the Elections Act and so it lacks jurisdiction to grant the reliefs sought by the petitioner in her petition. He submits further that the judgment of the High Court at Mombasa delivered on 14th September 2023 in Election Petition Appeal No. E087 of 2023 was final and binding upon the petitioner, who was a party to the said election petition and her filing of the present constitutional petition seeking to challenge the said judgment is a subversion of the provisions of Article 87 of the Constitution of Kenya, as read together with the provisions of section 75 of the Elections Act. 44. The 2nd respondent submits further that the issues raised in the petition were res judicata under Section 7 of the Civil Procedure Act (Cap. 21) Laws of Kenya which provides that: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 45. That the issues were determined conclusively in the High Court Election Petition Appeal No. E087 of 2023, where the petitioner, the 1st respondent and the IP were parties, with the court declaring the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 7

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Petitioner’s nomination as a special seat Member of the County Assembly of Kwale invalid, declaring the said seat vacant, and directing the 1st Respondent herein to undertake fresh nominations in accordance with party lists of the Petitioner’s political party. That for the said reasons, through the present petition, the petitioner is effectively asking this court to sit on appeal over a judgment of a court of concurrent jurisdiction. 46. In support of that submission he has cited the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) the Supreme Court of Kenya stated that the doctrine of res judicata was aimed at achieving finality to litigation and preventing the vexing of an individual twice over the same cause and that the same applies with equal force to constitutional petitions. 47. The petitioner submits that the preliminary objection is not on a pure point of law as there are facts in dispute to be determined and further that this court has jurisdiction to determine the petition because the cause of action is seeking injunctive orders and declarations which cannot be granted by an election court. That the petition does not seek to review the orders of the Election court or any appeal therefrom. That therefore the preliminary objection should be dismissed. 48. The threshold to be met for a preliminary objection to be successful is as enunciated in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F where Law JA (as he then was) said that: “ ... a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 49. At page 701 paragraph B-C Sir Charles Newbold, P. added the following: “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...” 50. The preliminary objection herein is on the issue of the jurisdiction of this court to hear and determine the petition filed by the petitioner herein. The petitioner submits that it does not meet the threshold for a preliminary objection. 51. In order to appreciate the point or points of law pleaded or arising by clear implication out of the pleadings by the parties, it is important to set out the petition and the response thereto by the respondents, if any. 52. In her petition dated 8th July 2024, the petitioner pleads that she was nominated as a member of County of Assembly of Kwale and was duly gazetted. She was actively participating in the County Assembly proceedings until her participation was interfered with vide judgment tendered in Mombasa HCA 82 of 2023 (Election Petition) later Election Petition Appeal No E002 of 2023 which was dismissed for want of prosecution (sic)(should be jurisdiction) and finally Supreme Court Application No. E014 of 2024 whereby the superior courts held they had no jurisdiction to hear the matter. The citation of the cases by the petitioner in the petition as above are incomplete and the one for the High Court is erroneous as the correct citation is Mombasa High Court Election Petition Appeal Number E087 of 2023, Mary Charles Kalinga v. IEBC, Josephine Wairimu Kinyanjui, Fartun Mohamed Musa, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 8

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Augustine Ndegwa, Mulki Abdullahi Adan & Rachael Katumbi Mutisya, Khadija Ngala, Melder J. Nyakiti, Kengo Judy Chizi, Ruwa Elizabeth Mwangola & Teresia B. Muoki 53. The Petitioner avers in her petition that she is a resident of Kwale County, within the Republic of Kenya, a registered voter in Kwale, Msambweni Constituency, Ngombato Bungwe Ward polling centre Nngori primary school and has lived. 54. The Petitioner avers that she is Somali and therefore from a minority tribe and hence qualifies to represent the interest of the minority in the Kwale County Assembly. The Petitioner averse that she is person entitled to the protections guaranteed by the Constitution of Kenya including the right to equal protection and benefit of the law under Article 27, the right to fair administrative action under Article 47, right to access justice under Article 48 and the right to fair hearing under Article 50 of the Constitution. The Petitioner avers that her said rights have been breached and therefore she has filed the petition herein to assert her rights as a nominated member of the County Assembly, Kwale. 55. The petitioner avers further that her attempts to have her rights respected in the Election Petition Case have not been successful, since the Petition Courts are not special courts to deal with exclusively constitutional issues hence the necessity to apply through this constitutional court. 56. She avers that the actions of the 1st & 2nd respondents' officers against the Petitioner as regards the respect of her constitutional rights to be nominated as MCA Kwale County are about to be infringed and hence is unreasonable, discriminatory and unfair, in contravention of Article 27 and 47 of the Constitution taking into account that the Petitioner's other nominees were notified and indeed are currently enjoying their nomination rights as members of Kwale County Assembly. 57. The petitioner avers further that the 1st and 2nd respondent's officers have been notified by the appellant (IP herein) in Mombasa Election Petition Appeal No. E087 of 2023 to enforce the Court Orders of 14th September, 2023 which shall result in the petitioner losing a nomination. If the respondents act on the said letter of 1st July, 2024, the petitioner's nomination as a member of the Kwale County Assembly shall be lost and her rights will be infringed that is rights to human dignity, freedom of association, to participate in political activities and make political choices, movement, to own property, social security and to fair administrative action guaranteed under Articles 28, 32, 33, 38, 39, 40, 43, 47 & 77 of the Constitution by reason of lack of upholding and confirming her nomination. 58. The petitioner maintain that the respondents’ action is in breach of the rule of law, violation of the right to equal protection and benefit of the law enshrined under Articles and 10 and 27 of the Constitution. 59. The petitioner contends that the 1st and 2nd respondents’ actions are motivated by extraneous matters, arbitrary, capricious, irrational, abuse and in excess of power which ought to be checked by this court. Further that the respondents have acted in breach of rule of law enshrined under Article 10 of the Constitution and in contravention of the spirit, purposes, values and principles of the constitution of Kenya contrary to Articles 2(1), (2) and 10. 60. In response to the petition the 2nd respondent, the Speaker of the County Assembly of Kwale filed a replying affidavit sworn on 13th September 2024, by Honourable Seth Kamanza, Speaker of the County Assembly of Kwale. 61. The depositions as are relevant to the preliminary objection herein are that that the High Court in Mombasa High Court Election Petition Appeal No. E087 of 2023 being a court of concurrent jurisdiction with this court having determined with finality the issues of elections by nominations of special seat members of the County Assembly of Kwale, the petition filed herein by the Petitioner is res judicata. That in its judgment the High Court ordered inter alia as follows as is relevant to this preliminary objection (redacted by this court): https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 9

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a. The failure to nominate persons with disability was unconstitutional, null, and void. b. Nomination of persons who were neither residents nor registered voters of Kwale County was invalid. c. The court decalred that Fartun Mohamed Musa, Josephine Wairimu Kinyanjui, Augustine Ndegwa, Mulki Abdullahi Adan and Rachael Katumbi Mutisya were not validly elected by nomination to the special seats they were elected to and as such declare that the seats as vacant. d. The court declared that the 6th, 7th, 8th, 9th, and 10th respondents, that is, Khadija Ngala, Melder J. Nyakiti, Kengo Judy Chizi, Ruwa Elizabeth Mwangola, Teresia B. Muoki were validly elected as nominated Members of the County Assembly of Kwale and continue to serve. e. None of the candidates found to have been invalidly elected are legible for re-election. f. The Clerk to the County Assembly to ensure the newly nominated persons were sworn on the nearest Tuesday within or 7 days of appointment. g. Certificates under section 86 of the Elections Act do issue accordingly. 62. The 2nd respondent deposes that the above judgment being final, the same has to be complied with by the parties to the said election petition appeal being among them the petitioner and the 1st Respondent herein, IEBC. Further that the petition can only be deemed to amount to an attempt by the petitioner to circumvent her compliance with the orders issued in the above judgment. That she is seeking to overturn the above judgment through the reliefs sought in the petition herein. 63. It is apparent from the averments in the petition and the depostions in the replying affidavit to the petition that the issue of the jurisdiction of this court to determine this constitutional petition arises on two fronts. First on whether the petition seeks to obtain orders that can only be granted by an election court and second whether those issues have in fact been conclusively determined by another court. 64. The petitioner acknowledges that her election as a nominated Member of the County Assembly of Kwale was nullified by the High Court. She also acknowledges that the respondents have been notified of the decision of the High Court by the IP herein and they are required to take action to enforce the judgment. 65. The ultimate question that this court asks itself is this, what is the end game of the petition by the petitioner? The end game can be discerned from the prayers sought in the petition, the penultimate prayers being that this court grants a declaration that the Petitioner is a duly nominated member of the County Assembly of Kwale under Article 177 of the constitution and a mandatory order of injunction be issued directing the IEBC and the Speaker of the County Assembly of Kwale to accept, uphold and allow the petitioner’s nomination as a member of the County Assembly of Kwale and the right to participate in all the proceedings of the Assembly. 66. It is therefore apparent that what the petitioner wants is to return to the County Assembly of Kwale as an MCA elected by nomination, contrary to the decision of the High Court in the election appeal. So, how possible is that through the petition filed herein? 67. It is common knowledge that the petitioner’s election by way of nomination to the County Assembly of Kwale was nullified by the High Court in Mombasa High Court Election Petition Appeal Number E087 of 2023 Mary Charles Kalinga v. IEBC and others. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 10

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68. In the case cited by learned counsels for the respondent and for the IP of Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] KESC 2 (KLR) the Supreme Court held that: “ … the Constitution provides for two modes of ‘election”. The first is election in the conventional sense, of universal suffrage; the second is ‘election’ by way of nomination, through the party list. It follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of “election petition”… (emphasis by underlining mine). To allow an electoral dispute to be transmuted into a petition for the vindication of fundamental rights under article 165(3) of the Constitution, or through judicial review proceedings, in our respectful view, carries the risk of opening up a parallel electoral dispute resolution regime. Such an event would serve not only to complicate, but ultimately defeat the sui generis character of electoral dispute resolution mechanisms, and notwithstanding the vital role of electoral dispute settlement in the progressive governance set-up of the current Constitution.” 69. Likewise in National Rainbow Coalition Kenya (NARC KENYA) v Independent Electoral & Boundaries Commission & Others (Petition 1 of 2021) [2022] KESC 6 (KLR) the Supreme Court reiterated the position thus: “ ...We could not agree more with the respondent’s submissions before us and the conclusions reached by the two courts below that the true character of the appellant’s cause, despite being disguised as a constitutional petition, was in fact an election petition, questioning the validity of nomination of elected members of the County Assemblies who had been gazetted; and that such challenge could only be commenced in the election court, in this case, under section 75(1A) of the Elections Act.” 70. I find that what the Supreme Court has frowned upon above is exactly what the petitioner herein is trying to do. She is attempting to get her seat back as an MCA to the County Assembly of Kwale by way of this constitutional petition which in disguise is an election petition, yet the very same parties, the petitioner and the IP and others were engaged in an election petition which ended with the petitioner’s election to the County Assembly of Kwale being nullified. 71. It has been held in numerous cases that that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed (see the case of . Kimani Wanyoike v Electoral Commission & another [1995] KECA 128 (KLR) 72. This court has no jurisdiction to grant those orders. The order in the first prayer can only granted by an election court as provided for under section 75 of the Elections Act, which this court is not as it is now sitting as a constitutional court. Secondly, it is patently clear that this court, sitting as an election court in its judgment dated 14th September 2023 already determined the issue of the petitioner’s nomination to the County Assembly of Kwale. On the second prayer for a mandatory injunction, the position is that in the event that the petitioner succeeds to prove that her rights were violated as alleged, the order that comments itself would not be to return her to the County Assembly of Kwale through an order of injunction as that would amount to upsetting the order of the election court that she was not validly nominated as an MCA to the County Assembly of Kwale. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 11

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73. I therefore find that this court has no jurisdiction to consider the application filed herein as a constitutional petition when in fact it is an election petition which has since been determined by the High Court in Mombasa High Court Election Petition Appeal No. E087 of 2023 which went all the way to the Supreme Court which affirmed the High Court decision by its decision that it had no jurisdiction over the matter. 74. Consequently, the petition herein is struck out with no orders as to costs. 75. Orders accordingly DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM TEAMS THIS 22ND DAY OF JANUARY 2026 IN THE PRESENCE OF: ANDAYI W. F. JUDGE In the presence of: Omwenga for Petitioner/Respondent. Deche for the Intended Interested Party/Applicant. N/A for 1st and 2nd Respondents. Ummu: Court Assistant. Date: 2026-01-23 10:14:27 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4556/eng@2026-01-22 12

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