JUDGMENT OF THE COURT
These two appeals which we have consolidated for convenient disposal arise from an interlocutory ruling of the High Court of Kenya at Mombasa (Sergon J) given on 4th December 2008 by which the learned Judge refused to admit to hearing and instead, struck out two identical notices of motion filed by Electoral Commission of Kenya, the 1st appellant, and Mwakwere Chirau Ali, the 2nd appellant, under section 23(2) of the National Assembly and Presidential Elections Act Cap 7 Laws of Kenya, sections 44 and 60 of the Constitution of Kenya and which motions sought the election petition filed against them by Ayub Juma Mwakwesi, the 1st respondent, to be struck out.
The 2nd appellant was declared the duly elected Member of Parliament for the Matuga Constituency during the 2007 Parliamentary and Presidential Elections. However, the 1st respondent, a registered voter, was dissatisfied and filed an election petition pursuant to the provisions of section 44 of the Constitution …