Deputy President William Ruto has been enjoined in a case that challenges his eligibility to run for the top office in the August 9 General Election.
Activist Okiya Omtatah has sought an order directing Dr Ruto and other holders of elective positions vying for the presidency to resign ahead of the nominations and clearance by the electoral commission.
Other than the DP, others affected are National Assembly Speaker Justin Muturi and Murang’a Governor Mwangi Wa Iria.
Mr Omtatah argues that it is discriminatory to require public officers to resign if they want to seek an elective seat as per Section 43(5) & (5A) of the Elections Act, while allowing those elected to continue serving.
Mr Omtatah further argues that the sections of the Elections Act contradict the provisions of Article 83(3) of the Constitution, which says that administrative arrangements for the conduct of elections should be designed to facilitate, and not to deny, an eligible citizen the right to stand for election.
The activist also wants court to declare that a sitting President, deputy president, governor and deputy governor cannot be elected to elective positions other than the one they hold.
Justice Anthony Mrima said Dr Ruto, all the 47 governors, deputy governors, senators, MPs and members of county assemblies should be enjoined as interested parties.
The judge directed Mr Omtatah to notify the elected leaders about the case and the order by placing an advertisement in a newspaper with nationwide circulation.
Also enjoined in the suit is the National Assembly, Senate and the Council of Governors.
“I have considered the nature of the petition and the parties who are referred to and who are likely to be affected. This court notes that most of them are not parties to the petition. The court must, therefore, take care of such,” said Justice Mrima.
The judge made the directions after refusing to dismiss the case as asked by the Attorney-General and the Independent Electoral and Boundaries Commission (IEBC).
Both the AG and the IEBC had argued that the court has no authority to address the issues raised in the case because the petition is similar to two others that were determined by the Court of Appeal recently in case involving civil servants resignation and the High Court last year.
Elective political offices
They wanted the petition dismissed because the issues raised by Mr Omtatah are long settled and for being against the doctrine ‘res judicata’, which bars litigation of issues that are substantially the same.
But Justice Mrima said Mr Omtatah’s main contention is whether Section 43 of the Elections Act is in compliance with Article 24(2)(a) of the Constitution. This issue has never being litigated, the court observed.
“This court finds that the issues raised in the current petition are pointed and were not canvassed or decided in the two (previous) cases referred to. As such, the plea of res judicata does not apply in the circumstances of this case,” said Justice Mrima.
Section 43 of the Elections Act talks about participation in elections by public officers. It exempts holders of elective political offices from the list of public officers who should resign to contest in an election.
Article 24(2)(a) says a law provision enacted or amended limiting the fundamental freedom is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation.
