42 a formal warning; a fine; prohibition from participation in the next election; prohibition from engaging in certain campaign activity, including being banned from holding meetings, erecting banners and distributing other literature (s 7, Electoral Code of Conduct). The IEBC may also apply to the High Court for an order that a candidate or a party should not participate in the current election (s 9, Electoral Code of Conduct). Editorial Note: In the case of Sabina Wanjiru Chege v IEBC, Nairobi Constitutional Petition E073 of 2022, the Electoral Code of Conduct (ECC) Enforcement Committee established under section 15 of the Code was declared unconstitutional for contravening Aricles 2(4), 3(1), 249 and 252 of the Constitution. Article 252(3) of the Constitution does not list the IEBC as one of the Chapter 15 Commissions that have the power to summon witnesses for purposes of conducting investigations. Thus, it was held that any law that conferred on the IEBC the power to issue summons to witnesses was in contravention with the Constitution and, therefore, null and void. The ECC had thus exceeded the Constitution in granting the ECC Enforcement Committee power to summon, and by virtue of Article 2(4) of the Constitution, granting of such power was void to the extent of the inconsistency. The Court deprecated the Code for allowing the IEBC to act simultaneously as complainant, witness, prosecutor and arbiter. Sections 7, 8, 10 and 15 of the Code, as well as Rules 15(4) and 17(1) and (2) of the Rules of Procedure which granted the ECC the power to summon witnesses and conduct hearings, were also declared unconstitutional. Further, the High Court clarified that while the IEBC has the jurisdiction to conduct investigations either suo moto or on a complaint made by a member of the public, its only recourse, if it forms the opinion that there is need for further action, is to refer the matter to the DPP or institute proceedings in the High Court. It cannot conduct hearings or summon witnesses. It may, however, also initiate mediation and conciliation through the use of its Peace Committees. The Court further ruled that the ECC was not binding where a person and/or their political party had not subscribed to the ECC and where a person had not been nominated to contest an elective post, even though the ECC provided that the Code was in effect from the date of publication of the notice of election. The decision was upheld on appeal in the case of IEBC v Hon Sabina Wanjiru Chege, Civil Appeal E255 of 2022 (unreported). 2.4.3. Magistrate’s Courts 2.4.3.0. A Resident Magistrate’s Court designated as an election court by the Chief Justice, has jurisdiction to hear and determine petitions challenging the validity of the election of a member of a county assembly (s 75(1A), Elections Act, 2011; and Milkah Nanyokia Masungo v Robert Wekesa Mwembe & 2 Others, Bungoma Election Petition No. 1 of 2013). 2.4.3.1. This includes a petition challenging the election of a person by nomination through the party list (Moses Mwicigi & 14 others v IEBC & 5 Others, Supreme Court Petition 1 of 2015; Orange Democratic Movement v Yussuf Ali Mohammed and 5 Others, Civil Appeal 37 of 2018). As stated by the Court of Appeal in Jaldesa Tuke Dabello v IEBC & Another, Civil Appeal No. 37 of 2014: We are cognizant of the principle that upon gazettement of members of the County Assembly, they are deemed to be elected members of the County Assembly and thus Section 75 (1A) of the Elections Act expressly indicated that the jurisdiction to consider, BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION