180 What then is to be stayed? We submit, nothing. [16] We also note that the Applicant seeks a conservatory order against the Speaker of the County Assembly of Garissa to restrain him from declaring a vacancy in the seat of the member of County Assembly for Abakaile Ward. Further, the Applicant also seeks to restrain the 3rd and 4th Respondents from conducting fresh elections in that Ward. More particularly, the Applicant seeks a stay of execution against the Judgment and Order of the High Court if we are to grant those orders. [17] In that regard, we are certain that, the High Court decision which nullified the Applicant’s election is not the subject of appeal before us. Since the Court of Appeal found that it had no jurisdiction to hear appeals arising from the elections of the member of County Assemblies, it did not determine the question of the validity of the election for the member of County Assembly for Abakaile Ward. As a result, the High Court decision was never determined on appeal. Indeed, in his Petition of Appeal, the Applicant appreciates the limited issue before us, when he seeks the prayer for the remittal of the matter to the Court of Appeal for hearing on merit. Therefore, since the question of the validity of the election of the member of County Assembly of Abakaile Ward is not before us, we cannot grant a stay order on an issue that cannot be legitimately solved by this Court. Accordingly, we find no basis for granting the stay orders or indeed any other orders sought. 6.3.4.0 The Court of Appeal nevertheless opined that the Supreme Court’s position was that there was no jurisdiction in respect of second tier appeals from the Magistrate’s Courts. In Mohamed Ali Sheikh v Abdiwahab Sheikh & 4 Others; Emmanuel Changawa Kombe (Interested Party), Election Appeal (Application) No. 261 of 2018, the Court of Appeal at para 67 opined: A reading of paragraphs 117 and 118 of the Supreme Court judgment in Moses Mwicigi & 14 others vs. Independent Electoral and Boundaries Commission & 5 others [2016] eKLR relating to nomination concerning membership to County Assembly seems to suggest the Court of Appeal has no jurisdiction to entertain MCA election petition appeals. The paragraphs state: “[117] It is clear to us 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’. [118] On such a foundation of principle, we hold it to be the case that whereas the Court of Appeal exercised jurisdiction as an appellate electoral Court, it had not been moved as such, in accordance with Section 85 A of the Elections Act, and relevant provisions of the Constitution. The respondents had moved the Appellate Court on the basis that they were aggrieved by the High Court’s decision in judicial review proceedings, in which that Court had declined jurisdiction. This in our view, would have been a proper case for the Appellate Court to refer the matter back to the High Court, with appropriate directions. 6.3.5.0 The Supreme Court would later have an opportunity to make a finding on this issue in the case of Hamida Yaroi Shek Nuri v Faith Tumaini Kombe, Amani National Congress & IEBC, Supreme Court Petition No. 38 of 2018, when it held at paras 32 and 33: Section 75 (4) of the Elections Act, does not limit the right of appeal emanating from an election petition, concerning the validity of the election of a member of a county assembly. The section in fact preserves the initial right of appeal to the High Court, but falls short of extending it to a second-tier level. To argue that, notwithstanding the nonprovision for a second appeal in Section 75 (4) of the Elections Act, such right of appeal nonetheless subsists under Article 164 (4) (3) (a) of the Constitution, would be subversive of Article 87 of the Constitution. It is worth repeating that the Constitution cannot subvert itself. Indeed, what may appear as a limitation of the jurisdictional reach of Article 164 (3) (a), of the Constitution, is borne out of Article 87 of the same Constitution. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION