A constitutional storm is brewing ahead of the November 27 parliamentary by-elections. Three sitting Members of County Assemblies (MCAs) have declared interest in vacant National Assembly seats, raising questions over possible violations of electoral law.
Ward reps Newton Kariuki Ndwiga (Muminji) and Duncan Ireri Mbui (Evurore) are both eyeing the Mbeere North seat, while West Kabras MCA David Athman Ndakwa is vying for Malava.
The controversy stems from Article 99(2)(d) of the Constitution, which disqualifies state officers — other than MPs — from election to Parliament.
Read together with the Elections Act and the Political Parties Act, the provision raises doubts over whether the three are eligible without first resigning.
Mr Kariuki, popularly known as Karis Mwana M-Embu, is a secular musician-turned-politician who won the Muminji seat in 2022 on a Devolution Empowerment Party (DEP) ticket with 4,548 votes. H
e has since defected to the Democratic Party (DP) and now seeks the Mbeere North seat left vacant after President William Ruto appointed Mr Geoffrey Ruku to the Cabinet.
His candidature has rattled allies of former Deputy President Rigathi Gachagua after his Democracy for Citizens Party (DCP) withdrew its support for Mr Mbui in favour of Mr Kariuki, following a deal with DP leader Justin Muturi. Mr Mbui, who captured Evurore Ward as an independent with 6,824 votes, has refused to step aside.
In Kakamega, Mr Ndakwa, elected on an Amani National Congress (ANC) ticket in 2022 with 4,570 votes, is now the United Democratic Alliance (UDA) candidate for Malava.
The Minority Leader in the County Assembly clinched the ticket after winning primaries with 6,477 votes, defeating Mr Ryan Injendi (3,783) and two others.
“I thank the people of Malava for the confidence they have shown in me. My commitment is to serve them with dedication and ensure their voices are heard at the national stage,” he said.
But Mr Injendi, son of the late Malava MP Malulu Injendi, rejected the results, alleging voter bribery and intimidation.
Lawyers insist the law is explicit. Safina Deputy Party Leader Willis Otieno said: “A public officer should not hold office at the time of elections. If these MCAs want to contest, they must resign first. Shifting parties is already deemed resignation under Article 194 of the Constitution.”
Constitutional lawyer Anthony Wanyingi cited precedent, noting: “A sitting MCA is disqualified from vying for MP. The Court of Appeal in Kibeh v Waibara affirmed that at the time of election, one should not hold another elective office.”
Other lawyers argue that, while MCAs can contest MP seats during general elections as their term lapses with the polls, by-elections are different. Section 43(5A) of the Elections Act requires resignation within seven days of a vacancy declaration.
The Independent Electoral and Boundaries Commission (IEBC) is yet to rule on the matter, but petitions are expected. With 24 by-elections scheduled, including six for MPs, the cases of Kariuki, Mbui and Ndakwa could set a precedent. If courts strike them out, it will reaffirm the principle that state officers cannot seek another seat while holding office.
DP Secretary General Jacob Haji defended Mr Kariuki, saying: “Our candidate has been an MCA for three terms. In 2022 he was elected on DEP but is now in DP, and the law allows him to vie.”
