41 to resolve pre-election disputes including nominations, there are instances where the Election Court, in determining whether an election is valid, may look to issues arising during the pre-election period, only to the extent that they have previously not been conclusively determined on merits by the IEBC, PPDT or 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. Where a matter or an issue has been so determined then the Election Court cannot assume jurisdiction as if it were an appellate entity, since that jurisdiction is not conferred on it by the Constitution. 2.4.2.17. In Sammy Ndung’u Waity v IEBC & 3 Others, Supreme Court Petition 33 of 2018, the Supreme Court gave the following guidelines on determining whether an election court had jurisdiction over a pre-election issue: (i) All pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT, as the case may be, in the first instance; (ii) Where a pre-election dispute has been conclusively resolved by the IEBC, PPDT or 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, such dispute shall not be a ground in a petition in an Election Court; (iii) Where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision 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; the High Court shall hear and determine the dispute before the elections, and in accordance with the constitutional timelines; (iv) 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; (v) The action or inaction in (iv) 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; and (vi) In determining the validity of an election court 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. 2.4.2.18. Since the EDR jurisdiction of the IEBC does not extend to election petitions, parties to an election petition are not obliged to accept any clarifications or explanations prepared by the IEBC subsequent to the filing of an election petition (Joash Wamang’oli v IEBC & 3 Others, Bungoma Election Petition No. 6 of 2013). 2.4.2.19. The IEBC also has jurisdiction over the violations of the Electoral Code of Conduct. This mandate appears to overlap with that of the Directorate of Public Prosecution, which is vested with the mandate of investigating and prosecuting alleged election offences and violations of the Electoral Code of Conduct (s 20 and 21, Election Offences Act 37 of 2016). Electoral Code of Conduct Enforcement Committee is by law, charged with resolving disputes arising out of the Electoral Code of Conduct. Sanctions that may be imposed against a candidate or party include: BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION