LLB Research Projects (2024)

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Browsing LLB Research Projects (2024) by Author "Kahero, E. K."

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    Beyond the exhaustion requirement: when courts must hear pre-election disputes in Kenya
    (Strathmore University, 2024) Kahero, E. K.
    My study focuses on the analysis and determination of whether parties can invoke the jurisdiction of the courts, bypassing the exhaustion requirement. I observed how several parties would go to court to present pre-election disputes, and would be turned away. My study employed a qualitative research approach, examining relevant legal provisions, case law and scholarly works. Through this research, my study has established that pre-election disputes can involve fundamental rights, obligating courts to entertain them. While courts should respect the separation of powers, particularly the independence of the IEBC, the Constitution elevates upholding rights above this principle when infringement is alleged. Additionally, the Constitution, particularly regarding the right to a free and fair election, necessitates constitutional courts' involvement in pre-election disputes with potential rights violations. Based on these findings, the research proposes recommendations for judges, legislators, the electoral body in Kenya (IEBC), parties who may experience pre-election disputes and legal practitioners. These recommendations suggest that courts could consider employing case-by-case discretion when deciding whether to entertain pre-election disputes, considering factors like the strength of legal arguments, shifting the burden of proof from the party seeking non-exhaustion to the party advocating for strict exhaustion, and the potential irreparable harm that may be suffered by the parties. The study further recommends that legislators could consider clearly defining the scope of alternative dispute resolution mechanisms and outlining specific situations where non-exhaustion is acceptable. These could be based on dispute complexity, potential harm involved, and inclusion of a "futility clause" for evidently biased or unreasonable delays by the specialized tribunals.