The High Court has thrown a lifeline to 11 MPs who previously served as MCAs, saying they were not required to resign before contesting their current seats in the 2017 general election.
Justice Anthony Mrima said a sitting President, MP, governor or MCA who intends to vie for any position in the general election, upon the expiry of the current electoral cycle need not resign before the election.
The judge, however, ruled that a State officer and any other public officer, other than those holding the elective seats, and who intends to vie for any position in the next general election, must resign within 14 days of the issuance of the notice of General Election by IEBC or any time before party nominations are held, whichever comes first.
“It, therefore, means that the President, MPs, governors and MCAs do not have to explicitly resign as the law renders them out of office on the second Tuesday of August every fifth year, of course except the President during the temporary incumbency under Article 134 of the Constitution,” the judge said.
Justice Mrima said a common thread in the term of office for the President, MPs, governors and MCAs is five years and that elections to those offices are held on the second Tuesday of August every fifth year.
In the matter, two Murang’a residents wanted 11 legislators including Mary Waithera (Maragua MP), Catherine Waruguru (Laikipia Woman Rep), Susan Kihika (Nakuru senator), Cleophas Malala (Kakamega senator) and Laikipia West MP Patrick Kariuki stripped of their seats, saying they did not resign from their positions as MCAs as required by law before contesting their current seats.
Others are Joyce Korir ( Bomet Woman Rep), Joash Nyamoko ( North Mugirango MP), Asha Mohammed (Mombasa Woman Rep), Fred Outa (Kisumu Central MP), Mutai Japheth Mutai (Bureti MP) and George Risa (Kajiado West MP). The petitioners, Mr Kennedy Irungu Ngodi and Mr Martin Njuguna, argued that the 11 legislators were ineligible to vie and be elected as MPs in the 2017 general elections.
Mr Ngodi and Mr Njuguna said being State officers, the lawmakers were barred from contesting the MPs seats as per Article 260 and Article 99 (2) of the Constitution. They argued that a person who is a member of a county assembly is disqualified from being elected as MP.
But through lawyer Charles Njenga, the MPs opposed the case, saying the petitioners had misread the law.
Justice Mrima agreed with the MPs, saying if the MCAs are forced to resign where the majority of members aspire for other seats, then it will mean that the county assembly will lack quorum and will not be able to discharge its constitutional mandate for the remainder of its term.
