50
(3) …If all orders, directions and rulings made in interlocutory applications were
appealable, there would be no possibility that electoral disputes would be resolved
within the strict timelines set out in the supreme law of the land.
2.4.6. The Supreme Court
2.4.6.0.1. The Supreme Court has exclusive original jurisdiction to hear and determine disputes relating
to the election of the President of the Republic of Kenya (Articles 163(3)(a) and 140 of the
Constitution; In the Matter of the Principle of Gender Representation in the National Assembly
and the Senate, Supreme Court Advisory Opinion No. 2 of 2012; and International Centre for
Policy and Conflict & 5 others v Attorney General & 5 Others, Nairobi High Court Constitutional
Petition No. 552 of 2012). This is so even where the results of the presidential election have
not yet been declared (The Africa Centre for Open Governance (AfriCOG) v Ahmed Issack Hassan
& Another, Petition 152 of 2013). However, it has no jurisdiction to interpret its own decisions
or those of other courts Raila Odinga v Independent Electoral and Boundaries Commission & 3
Others, Supreme Court Presidential Petition No. 1 of 2017. The Court may also inquire into any
allegations of voter-registration malpractices, where such are said to affect the validity of a
Presidential election (Raila Odinga v IEBC & 3 Others, Supreme Court Presidential Petition No. 5
of 2013).
2.4.6.0.2. The Supreme Court also has a circumscribed appellate jurisdiction over decisions of the
Court of Appeal, limited to:
(a) cases involving the interpretation or application of the Constitution (Article
163(4)(a) of the Constitution); and
(b) cases certified by the Court of Appeal or the Supreme Court as involving
a matter of general public importance (Article 163 (4) (b) and (5) of the
Constitution).
2.4.6.0.3.
The appellate jurisdiction of the Supreme Court over EDR decisions of the Court of Appeal,
therefore, is limited to cases involving the interpretation or application of the Constitution or
cases involving a matter of general public importance (as discussed in sections 2.4.6.1 and 2.4.6.2
below). A party seeking to invoke the jurisdiction of the Supreme Court must specify under what
limb of Article 163(4) of the Constitution they seek to move the court (National Rainbow Coalition
Kenya (NARC Kenya) v IEBC; Tharaka Nithi County Assembly & 5 Others (Interested Party), Supreme
Court Petition 1 of 2021). It will not be assumed by way of elimination (Hermanus Phillipus Steyn v
Giovanni Gnecchi-Ruscone, Supreme Court Application 4 of 2012, Daniel Kimani Njehia v Francis
Mwangi Kimani & Another, Civil Application No 3 of 2014; and Mike Mbuvi Sonko v Clerk County
Assembly of Nairobi, Supreme Court Petition 11(E008) of 2022). The Supreme Court in Suleiman
Mwamlole Warrakah & 2 Others v Mwamlole Tchappu Mbwana & 4 Others, Supreme Court Petition
12 of 2018, asserted:
[52] On our part, we find it inconceivable, contrary to the submissions of Counsel for the
petitioners, that a party can seek to invoke this Court’s appellate jurisdiction, without
unequivocally indicating under which constitutional provision he/she seeks to move
the Court. One cannot seek refuge in Rule 9 and the template in Form B of the Supreme
Court Rules to justify such a fundamental omission. The appellate jurisdiction of this
Court is donated by the Constitution. It is neither original nor unlimited. The limits of its
jurisdiction are set out by the Constitution as clarified by this Court in a number of its
decisions. In the circumstances, an intending appellant must either seek certification
under Article 163 (b) of the Constitution or bring him/her (self) within the ambit of Article
163 (4) (a) thereof. This second option is by no means automatic as pronouncements of
BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION