The Nyamira High Court has declared vacant the position of Jubilee Party's nominated MCA in the gender top-up category, as the party of former President Uhuru Kenyatta announced further purges of defectors in the party.
The position was previously held by Dolphine Nyangara Onkoba.
In her ruling, Lady Justice Wilfrida Okwany said Ms Onkoba's ascension to the position a year ago was irregular and therefore found merit in a petition challenging it.
Justice Okwany ordered the Nyamira County Assembly Speaker Enock Okero to ensure that the petitioner, lawyer Michelle Kemuma Omwoyo, is sworn in as the duly nominated Jubilee Party MCA within 24 hours.
“An order is hereby issued directing the 2nd respondent (speaker) to immediately declare the position of Jubilee Party Representative in the Gender Top Up List for Member of County Assembly of Nyamira vacant," Justice Okwany ordered.
Jubilee secretary-general Jeremiah Kioni told the Nation that the party welcomed the court ruling and announced that it would now turn its attention to the National Assembly to oust the nominated MP, Sabina Chege.
Just last week, Ms Chege was dethroned as deputy minority whip in the National Assembly and replaced by Embakasi West MP Mark Mwenje.
Mr Kioni says the party will now focus on removing her as a nominated MP, following the court precedent in the Nyamira MCA matter.
“Sabina is next. Even before she got familiar with the Assembly. She aligned herself with UDA,” Mr Kioni said of Ms Onkoba, who was removed from office by the Nyamira High Court.
Ms Omwoyo is to be sworn in as the duly nominated MCA to represent the Jubilee Party in the category, the judge ordered Speaker Okero.
Failing that, Justice Okwany said Ms Omwoyo was free to take up the position.
“…the petitioner shall be deemed to have been duly elected and sworn-in, in which case, she will be at liberty to take up her position as Member of the Nyamira County Assembly…,” Justice Okwany ruled.
But during the prosecution of her case, Ms Omwoyo told the court that the Jubilee Party had submitted her name to the Independent Electoral and Boundaries Commission (IEBC) for nomination under the gender top-up category as required by Article 90(2)(a) of the Constitution.
However, Ms Omwoyo claimed that she was shortchanged when the IEBC published her name as number three instead of number one in a gazette notice No. 10712 Vol. CXXIV No. 186. Party nominees are usually selected based on the order of priority (number) in the IEBC gazette notice.
The gazette notice placed Ms Onkoba's name at number one; therefore, she had a higher chance of being nominated than Ms Omwoyo, and consequently, of occupying the Jubilee slot in the Gender Top Up category.
Earlier, in election petition number E001 OF 2022 challenging the IEBC's decision, the Nyamira Chief Magistrates Court agreed with Ms Omwoyo - ruling that Ms Onkoba's nomination was "null and void".
However, the court ordered the IEBC to immediately publish a new list with Ms Omwoyo at number one in the gender top-up category.
The list, which was to favour Ms Omwoyo, was submitted to the IEBC by the Secretary General of the Jubilee Party on September 9, 2022 and was in compliance with the “judgment and decree of the Political Parties Dispute Tribunal dated September 8, 2022,” the magistrate had noted.
While acknowledging receipt of the new list, the IEBC had argued that its hands were tied because the disputed list had already been sent to the government printer.
However, the court noted that the contested list would be published later on September 12, 2022.
As such, the court found that the IEBC was "in control of the nominations list and could therefore comply with the Tribunal's order between the 9th and 12th of September 2022 before it was released to the public".
Ms Onkoba's first attempt to appeal the magistrate's ruling failed before Justice Lucy Njuguna on May 29, 2023.
“Despite two valid court judgments by 2 courts of competent jurisdiction declaring that the petitioner was validly nominated…and despite the the fact that there are no stay orders stopping the swearing in of the petitioner (Ms Omwoyo). … and despite several letters to the 2nd respondent (speaker) to swear in the petitioner, the 2nd respondent had failed, refused and or neglected to swear in the petitioner,” Justice Okwany's ruling read.
The Judge further noted that the speaker had often insisted that Ms Omwoyo's swearing-in had to be preceded by a gazette by the IEBC; an argument that was not the procedure.
Nevertheless, Justice Okwany noted that the IEBC currently has no commissioners following their removal, resignation or retirement, so it would be a further violation of Ms Omwoyo's rights to continue to wait for the gazette notification.
Similarly, the IEBC chief executive officer, Justice Okwany ruled, "cannot act on his own or assume the role of the commission in cases where the commission is either not properly constituted or not constituted at all".
The Jubilee Party last week signalled a purge of rebels by ordering their removal from parliamentary committees, just a day after it succeeded in ousting Ms Chege as deputy minority whip in the National Assembly.
The former ruling party also revealed its plans to initiate the expulsion of Ms Chege and East African Legislative Assembly representative Kanini Kega from its ranks, with the aim of having them lose their positions in their respective assemblies.
"The MPs who were given committee positions were given courtesy of Azimio. We told [Mr Mwenje] to remove [party rebels] from the committees," Jubilee deputy leader David Murathe said last week.
