The Court of Appeal has overturned the decision of the High Court to dismiss a petition challenging election of Gatundu North MP Anne Wanjiku Kibe.
But instead of invalidating Ms Kibe's election as requested by the petitioner former MP Kung'u Waibara, the three-judge bench sent the matter back to the High Court for fresh hearing and determination within six months.
The petition raises a constitutional question of whether Ms Kibe was qualified to vie for the parliamentary seat since at the time of the polls she had not resigned as a nominated war representative of Kiambu County Assembly.
While ruling on Mr Waibara's appeal, the judges found that the High Court had not conclusively determined the constitutional question raised by the petitioner.
"The appellant has raised a new question for interpretation under article 105 (1) (B) of the Constitution that has not been determined by any competent court. We find that the trial court erred in equating the contest herein as being based on the validity of the election of Ms Kibe," said Justices Asike Makhandia, Fatuma Sichale and Jamilla Mohammed.
They also ruled that the question was not determined on merits by the trial court because the judge had observed that the petition was similar to another one where Mr Waibara was disputing validity of Ms Kibe's election.
The bench found that the matter that was before the trial court was issue of qualification and eligibility of Ms Kibe which had not been raised or determined in the other petition that was challenging validity of the election. Therefore the judge made a mistake to dismiss the petition under the doctrine of res judicata , which prevents litigation of an issue that has already been determined.
"For the doctrine of res judicata to apply the subject matter must have been conclusively decided in the previous proceedings by a competent court with jurisdiction.
"To dismiss the issue for want of jurisdiction does not have the effect of making the issue fully determined on merits. It follows therefore that the issue on the qualification of Ms Kibe to contest is yet to be determined," ruled the judges.
Mr Waibara filed a constitutional petition claiming that the right to vie for election as a Member of Parliament is subject to qualification criteria set out in article 99 of the Constitution.
While quoting article Article 99 (2) (D), the petitioner says a person stands disqualified if at the date of the election such a person was an MCA.
Article 99 (2) (D) says a person is disqualified from being elected a Member of Parliament if the person is a member of a county assembly. Sub-section (A) bars a state officer or other public officers from being elected for a parliamentary seat.
Mr Waibara says Ms Kibe was not qualified to vie for the parliamentary seat since, on the date of her election in the 2017 General Election, she had not resigned as a nominated MCA in the Kiambu County Assembly.
Ms Kibe won the parliamentary seat by garnering 39,447 votes against Mr Waibara’s 9,390 votes.
