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Court suspends IEBC's Sh2.5m fine on MP Gikaria
Nakuru East MP David Gikaria. He was re-elected for a third term in the August 9 elections, beating 14 other contestants
The High Court has suspended the electoral commission's decision to fine Nakuru Town East MP David Gikaria Sh2.5 million over alleged voter inducement and misleading statements about voting requirements during the Ol Kalou parliamentary by-election campaign.
The ruling extends judicial scrutiny of the Independent Electoral and Boundaries Commission (IEBC)'s campaign code enforcement.
The order came two days after the court similarly froze the commission's Sh1.5 million penalty against Kipipiri MP Wanjiku Muhia over campaign remarks made during the same closely watched polls.
Justice William Musyoka certified Mr Gikaria's judicial review application as urgent and stayed the implementation of the Electoral Code of Conduct Enforcement Committee's July 14 decision pending further directions on July 29.
He also barred IEBC and its committee from enforcing the determination in the meantime.
The committee chaired by Commissioner Alutalala Mukhwana had fined Mr Gikaria Sh2.5 million, ordered him to issue a public apology at IEBC headquarters within 48 hours, and referred the matter to the Director of Public Prosecutions for possible offences under the Election Offences Act.
It had warned that failure to comply could attract further sanctions, including being barred from contesting elections conducted by the commission.
The disciplinary proceedings arose from remarks the MP allegedly made while campaigning in Ol Kalou before the July 16 parliamentary by-election.
According to the charge sheet, he allegedly stated that he had spent Sh1.2 million on campaign meetings and obtained more money after the initial amount was exhausted.
He also allegedly told supporters that national identity cards were unnecessary for voting because biometric verification was sufficient.
The committee concluded the remarks appeared to amount to offering monetary rewards to voters for attending political events and misleading voters in a manner capable of voter suppression.
Mr Gikaria is challenging both the disciplinary process and the resulting sanctions.
Nakuru Town East MP David Gikaria.
In court papers, his advocate Dr Adrian Kamotho Njenga argues the committee violated his constitutional rights by refusing to adjourn the hearing despite medical evidence showing he was unwell and later admitted to hospital.
The lawyer says the MP became ill on July 13 and only learnt of the proceedings after reports circulated on social media. His personal assistant attended before the committee seeking an adjournment before his lawyers later made a formal application after coming on record.
The application was initially allowed because the committee had not supplied the cyber investigation report it intended to rely on. The hearing was rescheduled for July 14.
Lawyer Njenga says Mr Gikaria was examined at Nakuru County Referral and Teaching Hospital, certified medically unfit and placed on three days' home convalescence before his condition deteriorated, leading to admission at Nakuru Specialist Hospital.
He says the lawyers produced the medical certificate and shared photographs and videos of his admission with the IEBC committee while seeking a further adjournment.
According to the application, the committee nevertheless proceeded with the hearing because he was represented by counsel.
"The Committee declined the applicant's request for an adjournment and directed that the proceedings continue in his involuntary absence solely on the basis that he was represented by counsel," the court filings state.
Lawyer Njenga further argues that the committee denied him an opportunity to personally explain the context and intention of the disputed statements.
"The complaint principally concerned statements allegedly made by the applicant personally," the application says, adding that Mr Gikaria "was denied the opportunity to personally testify, explain the impugned statements or respond to the allegations."
The lawyer also argues that the sanctions were unlawful, unreasonable and disproportionate, saying they exposed the MP to immediate financial loss, reputational harm, possible criminal proceedings and further electoral sanctions before the legality of the committee's decision could be tested in court.
Justice Musyoka certified the case urgent and directed the respondents to file their responses before the matter returns to court on July 29 for directions.
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