55 PRE-ELECTION DISPUTES 3.1. General Rules 3.1.1. The resolution of pre-election disputes, i.e., disputes arising before the declaration of election results, is shared among political parties, PPDT, IEBC and the courts (Article 88(4)(e) of the Constitution; s 40, Political Parties Act; and s 74, Elections Act, 2011). Generally, the courts will not entertain a pre-election dispute (including questions of validity of party nominations, qualification for elective office, commission of election malpractices, citizenship, resignation from public office before elections, voter registration, party list disputes and campaign violations) where the parties have not exhausted prescribed dispute resolution mechanisms at the political party, the PPDT, the IEBC or other prescribed pre-election dispute resolution forums (International Centre for Policy and Conflict & 5 Others v Attorney General & 5 Others, Nairobi High Court Constitutional Petition No. 552 of 2012; Francis Gitau Parsimei & 2 Others v National Alliance Party & 4 Others, Nairobi High Court Constitutional Petition No. 356 of 2012; Isaiah Gichu Ndirangu & 2 Others v IEBC & 4 Others, Nairobi High Court Petition No. 83 of 2015; Vincent Ngw’ono Manyisa v Wiper Democratic Party & 3 Others, Nairobi High Court Election Petition Appeal No. 38 of 2017; Sammy Ndung’u Waity v IEBC & 3 Others, Supreme Court Petition 33 of 2018; Silverse Lisamula Anami v IEBC & 2 Others, Supreme Court Petition 30 of 2018; Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others; Ahmed Ali Muktar (Interested Party), Supreme Court Petition 7 of 2018; Okiya Omtatah Okoiti & 15 Others v The Hon. Attorney-General & 7 Others, Nairobi Petition E090 of 2022 (consolidated)). 3.1.2. The rationale for this was explained in Diana Kethi Kilonzo & Another v IEBC & 10 Others, Nairobi High Court Constitutional Petition No. 359 of 2013: We note that the Constitution allocated certain powers and functions to various bodies and tribunals. It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. These bodies and institutions should be allowed to grow. The people of Kenya, in passing the Constitution, found it fit that the powers of decision-making be shared by different bodies. The decision of Kenyans must be respected, guarded and enforced. The courts should not cross over to areas which Kenyans specifically reserved for other authorities. 3.1.3. Equally, litigants cannot evade the political party, the PPDT, the IEBC or other prescribed pre-election dispute resolution fora by presenting the nature of the pre-election dispute as one relating to the interpretation, supremacy or enforcement of the Constitution (Isaiah Gichu Ndirangu & 2 Others v IEBC & 4 Others, Nairobi High Court Petition No. 83 of 2015; and International Centre for Policy and Conflict & 5 Others v Attorney General & 5 Others, Nairobi High Court Constitutional Petition No. 552 of 2012). 3.1.4 Historically, there was divided opinion on the place of the election court in determining disputes arising before declaration of results. The Divestiture School of thought presented the view that the election court is divested of jurisdiction to hear and determine matters falling within the ambit of the parties’ IDRM, the PPDT and the IEBC. The rationale for the courts’ reluctance to exercise original jurisdiction over pre-election disputes is twofold. First, public interest requires citizens to refrain from litigation where there are effective alternative procedures for resolving a particular dispute (Francis Gitau Parsimei & 2 others v National Alliance Party & 4 Others, Nairobi High Court Constitutional Petition No. 356 of 2012; Godfrey Mwaki Kimathi & 2 Others v Jubilee Alliance Party & 3 Others, Nairobi High Court Petitions Nos. 102 and 145 of 2015; and Pasmore & Others v The Oswaldtwistle Urban District Council [1898] AC 387). BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION