• Ashford Koome Mbogo, Michael Ochieng and Eric Githinji filed the case claiming the provision is unconstitutional and offends the principle of independence of IEBC.
• Justice Hedwig Ong'undi said she lacks the jurisdiction as its not for the High court to direct the Apex court on what to do or not to do.
The High Court has dismissed a petition seeking to bar the Supreme Court from declaring the winner of a presidential election after vote recount.
The petition sought to declare a section of the law that allows the Supreme Court to declare the winner of a presidential election after a recount of the votes cast as unconstitutional.
Justice Hedwig Ong'undi said she lacks the jurisdiction as its not for the High Court to direct the Apex court on what to do or not to do.
Article 163 (3) (a) of the constitution provides that the Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the election to the office of the President.
Ong'undi said the section is clear that it's the Supreme Court and not the High Court that has exclusive jurisdiction to deal with disputes relating to the presidential election.
Ashford Koome Mbogo, Michael Ochieng and Eric Githinji filed the case claiming the provision is unconstitutional and also offends the principle of independence of the electoral agency.
They argued that the said section is unconstitutional to the extent that it purports to confer powers on an election court, to issue an order to IEBC to issue a certificate of election, to a petitioner or losing presidential candidate upon recount of the ballots cast.
"We will be seriously prejudiced if the supreme court proceeds to pronounce itself on such petitions without the benefit of a constitutional interpretation of section 80 (4) (a) by court," the court documents read.
So far, nine petitions have been filed at the Supreme Court by various parties among them Azimio presidential candidate Raila Odinga and his running mate Martha Karua challenging the declaration of William Ruto as president-elect.
The petitions were filed on Monday and those sued are expected to have filed their responses by Saturday.
The three Kenyans however say both IEBC and Ruto will be directly affected by a determination of the election court.
They have asked the court to declare that only the chairperson of IEBC can declare a presidential candidate as having been validly elected president under Article 138 of the constitution.
Also sought is a declaration that the certificate of election issued by the IEBC to Ruto is legally valid unless or until the same is annulled by the Supreme Court of Kenya.
(Edited by Bilha Makokha)