22 JURISDICTION AND TIMELINES IN EDR 2.1 Jurisdiction 2.1.1. Jurisdiction to determine election petitions is a special constitutional function. It is neither Civil nor Criminal. It must be granted by the Constitution or Statute. This is consistent with the general principle that courts and tribunals can only exercise the jurisdiction conferred on them by the Constitution and the laws of the land (Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1). A court or tribunal cannot arrogate to itself jurisdiction through the craft of legal interpretation, or by way of endeavours to discern or interpret the intentions of Parliament where the wording of legislation is clear and there is no ambiguity (In Re The Matter of the Interim Independent Electoral Commission, Supreme Court constitutional Application No. 2 of 2011). Moreover, a court or tribunal cannot exercise jurisdiction over an electoral dispute which falls within the exclusive competence of a different court or tribunal (Francis Gitau Parsimei & Others v National Alliance Party & Others, Nairobi Constitutional Petition No. 356 of 2012; Republic v IEBC ex parte Charles Olari Chebet, Nakuru Miscellaneous Civil Application No. 3 of 2013). Where a court or tribunal acts in the absence of jurisdiction, such action and every ensuing proceeding will be bad and incurably bad (Mcfoy v United Africa Company Ltd [1961] 3 All ER 1169). 2.1.2. It has long been settled that no circumstance can make up for the lack of jurisdiction. In Sir Ali Salim v Shariff Mohammed Sharray 1938 [KLR] (as cited in Faith Wairimu Gitau v Hon. Wanjiku Muhia & Another, Nairobi High Court Election Petition Appeal No. 25 of 2017), it was held that: If a court has no jurisdiction over the subject matter of the litigation, its judgments and orders, however certain and technically correct, are mere nullities and not only voidable, they are void and have no effect either as estoppel or otherwise and may not only be set aside at any time by the court in which they are rendered, but be declared void by every court in which they may be presented. It is well established law that jurisdiction cannot be conferred on a court by consent of parties and any waiver on their part cannot make up for the lack of jurisdiction. 2.1.3. Disputes relating to the EDR process are special in nature. Accordingly, various Courts, Tribunals and administrative bodies are assigned the competence to hear and determine specified electoral disputes (Thuo Mathenge v Nderitu Gachagua & 2 Others, Nyeri Election Petition No. 1 of 2013). 2.1.4. Moreover, a court or tribunal cannot exercise jurisdiction over an electoral dispute which falls within the exclusive competence of a different court or tribunal (Francis Gitau Parsimei & Others v National Alliance Party & Others, Nairobi Constitutional Petition No. 356 of 2012; and Republic v IEBC ex parte Charles Olari Chebet, Nakuru Miscellaneous Civil Application No. 3 of 2013). 2.1.5. It is important, therefore, for a court or tribunal to ascertain, as a preliminary matter, whether it has jurisdiction before proceeding to hear and determine any electoral dispute. Since jurisdiction is always a threshold issue, it should ideally be raised at the earliest possible moment (Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others, Nairobi Civil Appeal No. 154 of 2013). 2.1.6. Jurisdictional challenges, however, can be raised at any stage of the litigation process, including appellate stages (Lemanken Aramat v Harun Meitamei Lempaka & 2 Others, Supreme Court Petition No. 5 of 2014; Eric Kyalo Mutua v Wiper Democratic Movement Kenya & Another, Nairobi High Court Election Petition Appeal No. 4 of 2017 at para 41; Martha Wangari Karua & Another v IEBC & 3 Others, Election Petition (Kerugoya) 2 of 2017; Martha Wangari Karua v IEBC & 3 Others, Nyeri Election Petition Appeal 1 of 2017, Martha Wangari Karua v IEBC & 3 Others, Nyeri Election Petition Appeal 12 of 2018). The practical consequence of this rule is that a court cannot ignore a jurisdictional challenge on the ground that it had not been pleaded or raised at the earliest BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION