About 10 MPs and senators risk losing their seats should a judgment delivered by the High Court in Nairobi Wednesday be upheld by the Court of Appeal.
Justice Weldon Korir ruled that a sitting member of the county assembly (MCA) is not qualified to contest for a parliamentary seat before resigning from the ward representative position.
While nullifying the election of Ms Wanjiku Kibe as Gatundu North MP, the judge said the lawmaker was unqualified since she had not resigned as MCA.
Before being elected in 2017 as Gatundu North MP, Ms Kibe was serving as a nominated MCA in the Kiambu County Assembly.
The court held that the first-time MP and the electoral commission failed to comply with a constitutional provision that prohibits election to the National Assembly of any person holding the office of MCA.
Section 99 (2)(d) provides that a person is disqualified from being elected a Member of Parliament if the person is a member of a county assembly.
MCAs wishing to vie for parliamentary seats should make a written resignation addressed to the Speaker of the relevant county assembly, states Article 194(1)(d).
The court’s ruling is likely to have an implication on a host of other lawmakers who were MCAs before being elected to Parliament in 2017.
They include Maragua MP Mary Waithira Wamaua, Fred Ouda (Kisumu West), Catherine Waruguru (Laikipia Woman Rep) and Joyce Korir (Bomet Woman Rep).
Also on the list is Kilifi Woman Rep Gladys Mbeyu together with her Mombasa counterpart Asha Mohammed and Kakamega Senator Cleophas Malala.
Others are Laikipia West MP Patrick Mariru and Nakuru Senator Susan Kihika. Ahead of the 2017 General Election, the two were speakers of Laikipia and Nakuru county assemblies, respectively.
Violation of election laws
While declaring the Gatundu North parliamentary seat vacant, the High Court held that Ms Kibe’s election was in violation of election laws and the Constitution since she was not qualified to participate in the contest.
Evidence tabled in court by former area MP Kung’u Waibara, who was challenging Ms Kibe’s election, indicated that as at August 8, 2017, the MP had not resigned from the MCA position.
On June 27, 2017, the former vernacular radio broadcaster was gazetted by the Independent Electoral and Boundaries Commission (IEBC) as a contestant of the parliamentary seat after winning the Jubilee Party nomination.
The court concurred with the petitioner that Ms Kibe’s continued occupation of the MP’s position was a perpetuation of an illegality that undermines the Constitution and particularly, the principles of the rule of law, accountability, transparency and integrity of electoral processes.
Mr Waibara celebrated the court’s judgment, saying it was a defence of the Constitution and giving the constitutional provisions their effect.
While ordering the electoral commission to conduct a fresh parliamentary election in Gatundu North and in accordance to the law, Justice Korir also directed the court’s deputy registrar to forward the ruling to the Speaker of the National Assembly for appropriate action – declaring the parliamentary seat vacant.
However, Ms Kibe said she would challenge the ruling at the Court of Appeal on grounds that the judge’s finding was erroneous.
Her lawyer Omwanza Ombati said the judge erred in law by first hearing a petition that was filed three years after the election in clear contravention of the law, which provides that the dispute should be lodged and disposed of within six months.
The lawyer also pointed that Justice Korir’s ruling was in conflict to an earlier High Court judgment, which held that elected leaders do not have to resign so as to contest for another seat.
