77 and justifiable and does not violate the Constitution. 3.5.5.14 The requirement of resignation of public servants was also found to be applicable to persons seeking election as speakers of the County Assembly, the National Assembly or the Senate (Philip K Langat v IEBC, Constitutional Petition E317 of 2022). 3.5.6 Challenges to Candidates Eligibility 3.5.6.1 Generally, the courts will not entertain disputes relating to the suitability or eligibility of candidates where the parties have not exhausted the alternative dispute resolution procedures set out in the IEBC Act, 2011; Political Parties Act; Elections Act, 2011; or any other relevant law (Michael Wachira Nderitu & 3 Others v Mary Wambui Munene Aka Mary Wambui & 4 Others, Nairobi High Court Constitutional Petition No. 549 of 2012; Ben Njoroge & Another v IEBC & 2 Others, Nairobi High Court Petition No. 14 of 2013; Josiah Taraiya Kipelian Ole Kores v Dr. David Ole Nkedianye & 3 Others, Nairobi Election Petition No. 6 of 2013; and Okiya Omtatah Okoiti & 15 Others v Attorney General & 7 Others, Nairobi Petition E090 of 2022 (consolidated)). 3.5.6.2 If this is not done, it cannot be raised before the election court, but the supervisory jurisdiction of the High Court may still be invoked after the election (Sammy Ndung’u Waity v IEBC; and Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others, Supreme Court Petition 7 & 9 of 2018 (consolidated)). 3.5.6.3 An election court should decline to entertain a dispute relating to the suitability or eligibility of a candidate where the petitioner has failed to refer the dispute to the IEBC (Josiah Taraiya Kipelian Ole Kores v Dr. David Ole Nkedianye & 3 Others, Nairobi Election Petition No. 6 of 2013). A person who is aggrieved by the IEBC’s decision on the suitability or eligibility of a candidate, however, may apply to the High Court for review of the decision (Diana Kethi Kilonzo & Another v IEBC & 10 Others, Nairobi High Court Constitutional Petition No. 359 of 2013). Where the IEBC’s decision relates to the suitability and/or eligibility of a candidate for election to the office of the President or Deputy President, however, the aggrieved person must seek its review at the Supreme Court (International Centre for Policy and Conflict & 5 Others v Attorney General & 5 Others, Nairobi High Court Constitutional Petition No. 552 of 2012). However, the jurisdiction of the Supreme Court can only be activated after the declaration of election results (Isaac Aluoch Polo Aluochier v IEBC & 19 Others, Supreme Court Petition 2 of 2013). 3.5.6.4 The principles to be applied by an election court when faced with a pre-election dispute were spelt out by the apex Court in the case of Sammy Ndung’u Waity v IEBC & 3 Others, Supreme Court Petition 33 of 2018. The principles are: a. 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. b. 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 to the election Court. c. 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. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION