179 30 of 2018). Per Odek JA (as he then was) in Mohamed Ali Sheikh v Abdiwahab Sheikh & 4 Others; Emmanuel Changawa Kombe (Interested Party), Election Appeal (Application) No. 261 of 2018: 64. In furtherance of their submission, the respondents urged the position that this Court has no jurisdiction to entertain second appeals concerning MCA election petitions impede, negate and contradict the automatic right of appeal to the Supreme Court under Article 163 (4) (a) of the Constitution on questions involving application and interpretation of the Constitution. It is settled law with regard to election matters that not every election petition-decision by the Court of Appeal is appealable to the Supreme Court – only those appeals arising from the decision of the Court of Appeal in which questions of constitutional interpretation or application were at play lie to the Supreme Court. This was stated by the Supreme Court in Lawrence Nduttu & 6000 others vs. Kenya Breweries Ltd & Another, S.C. Petition No. 3 of 2012; [2012] eKLR as follows: “…the appeal must originate from a court of appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4) (a).” 65. At a de facto and de jure level, both the Court of Appeal and the Supreme Court have in the recent past heard and determined election petition appeals concerning membership to County Assembly. Notable cases where the Supreme Court has considered membership to County Assembly appeals include the judgment in Independent Electoral & Boundaries Commission vs. Jane Cheperenger & 2 others [2018] eKLR; Moses Mwicigi & 14 others vs. Independent Electoral and Boundaries Commission & 5 others [2016] eKLR and Jennifer Koinante Kitarpei vs. Alice Wahito Ndegwa & another [2015] eKLR. It is noteworthy that in all these cases the superior court in the first instance was moved by way of judicial review and not an election petition. Except in the pending case of Hamida Yaroi Sheikh Nuri vs. Faith Tumaini Kombe & 2 others [2018] eKLR there is presently no other MCA election petition appeal heard by the Supreme Court. 66. It begs the question if the Court of Appeal has no jurisdiction to entertain MCA second appeals, it would be creating legal confusion to hold the above cited cases were heard and determined by both the Court of Appeal and Supreme Court without jurisdiction and are per incuriam. This cannot be so. It can be argued that the foregoing cases that were heard and determined by this Court and the Supreme Court were initiated through a judicial review process and as such, both courts had jurisdiction. This may be so. However, doctrinal consistency and electoral jurisdictional certainty should not encompass and entertain a two way approach to appellate dispute resolution namely: that if you follow the judicial review route, this Court and the Supreme Court have jurisdiction to hear and determine a second or third appeal respectively; that if you follow the election petition appeal route, there is no second or third appeal. This is the duality and dichotomy of legal penumbra that is not doctrinally consistent. Such duality in jurisdictional approach should not be tenable in law. It is for this reason that the Supreme Court or legislative intervention is required to settle the jurisdictional question on the right to second or third appeals concerning MCA election petitions. 6.3.3.0 The Supreme Court, being seized of an application to stay the orders of the Court of Appeal in Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 Others, Election Appeal Application No 38 of 2018, declined to grant the orders of stay, but did not address the question of jurisdiction of the Court of Appeal in second appeals on MCA petitions. In the words of the Court: [15] In the above context and on considering the matter, we have difficulties in granting the Applicant’s prayer for stay against the Ruling of the Court of Appeal. We say so because, even if the appeal may be arguable, which we do not dispute, staying the Court of Appeal’s Ruling is unnecessary and would serve no purpose as there is no subject matter which is required to be preserved. The Court of Appeal only struck out the Notice and Record of Appeal without more. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION