78 d. Where a person knew or ought to have known of the facts forming the basis of a pre-election dispute and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a petition to the election Court. e. The action or inaction in (d) above shall not prevent a person from presenting the dispute for resolution to the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution, even after the determination of an election petition. f. In determining the validity of an election under Article 105 of the Constitution or Section 75 (1) of the Elections Act, an election court may look into a pre-election dispute if it determines that such dispute goes to the root of the election and that the petitioner was not aware or could not have been aware of the facts forming the basis of that dispute before the election. 3.5.6.5 Where the IEBC fails to make due inquiry into the eligibility and suitability of a candidate, the aggrieved party can invoke the supervisory jurisdiction of the High Court (Luka Angaiya Lubwayo & Another v Gerald Otieno Kajwang & Another, Nairobi High Court Election Petition No. 120 of 2013; International Centre for Policy and Conflict & 5 Others v Attorney General & 5 Others, Nairobi High Court Constitutional Petition No. 552 of 2012; and Karanja Kabage v Joseph Kiuna Kariambegu Ng’ang’a & 2 Others, Nairobi Civil Appeal No. 301 of 2013). 3.5.6.6 This jurisdiction is not lost because an election has already taken place (Wilfred Manthi Musyoka v Returning Officer, IEBC, Machakos County & 4 Others, Constitutional Petition E004 of 2021). The High Court’s intervention in such cases, however, is limited to ensuring that the IEBC undertakes due inquiries in accordance with the standards set out in the Constitution. The High Court cannot, in the exercise of its supervisory jurisdiction, arrogate to itself the role of conducting inquiries into the suitability and eligibility of a candidate (Benson Riitho Mureithi v J. W. Wakhungu & 2 Others, Nairobi High Court Petition No. 19 of 2014; and Godfrey Mwaki Kimathi & 2 Others v Jubilee Alliance Party & 3 Others, Nairobi High Court Petition Nos. 102 and 145 of 2015). 3.5.6.7 However, the fifth principle articulated in Sammy Ndung’u Waity v IEBC & 3 Others, Supreme Court Petition 33 of 2018, further gives the High Court some residual jurisdiction to be deployed, even after a cycle of EDR. In the case of Clement Kung’u Waibara v Anne Wanjiku Kibeh & Another, Nairobi Civil Appeal No. 431 of 2019, the Court of Appeal affirmed the position that a petition to declare a parliamentary seat vacant on the disqualification grounds set out in Article 99 of the Constitution would not be deemed as res judicata, even if the courts had affirmed the validity of the election. In this case, the petitioner challenged the election of the Gatundu North Constituency member of National Assembly. His petition was allowed, and the election nullified. The Court of Appeal overturned this finding and declared the MP validly elected, a decision that was affirmed by the Supreme Court. 3.5.6.8 After the Supreme Court had affirmed the election of the MP, the petitioner moved the High Court to declare her parliamentary seat vacant under Article 105(1) of the Constitution on the ground that she was not qualified to have been nominated to contest the parliamentary election; having failed to resign as a member of County Assembly prior to being nominated to contest parliamentary office. The petitioner had raised the same issue in the election petition. However, it was never determined on the merits as the election court declined jurisdiction. 3.5.6.9 While the Court of Appeal ultimately held, in Kibeh v Waibara & Another Civil Appeal E468 of 2020, that the petition lacked merit since, at the time of the 2017 elections, Hon. Kibeh had BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION