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Court strikes out petition challenging CS Mbadi's replacement in Parliament
Cabinet Secretary for National Treasury and Economic Planning John Mbadi before the National Assembly Public Debt and Privatisation Committee at Continental House Nairobi on November 28, 2024.
The High Court has struck out an election petition contesting the nomination of Harold Kimune Kipchumba to Parliament, bringing closure to a legal dispute triggered by John Mbadi's departure from the legislature to join the Cabinet.
In its ruling, the court declared the petition filed by rights activist Mary Ariviza Mwami "fatally defective" for failing to deposit the mandatory Sh500,000 security for costs within the stipulated timeframe.
"The petition dated August 19, 2025, is struck out for non-compliance with Section 78(1) and (2) of the Elections Act," the court stated, noting there was no evidence demonstrating the petitioner's financial constraints.
Mr Harold Kipchumba Kimuge.
The case originated from Mr Mbadi's appointment as Cabinet Secretary for the National Treasury in July 2024, which created a vacancy among nominated Members of Parliament.
Mr Mbadi, an ODM party politician and former National Assembly Minority Leader, was appointed to Cabinet by President William Ruto as part of the broad-based government arrangement. His transition necessitated the reallocation of his special seat through ODM's party list mechanism.
On July 24, 2025, the Independent Electoral and Boundaries Commission (IEBC) gazetted Mr Kipchumba as the nominee to fill the vacancy, relying on ODM's submitted party list under Article 90 of the Constitution.
Ms Mwami subsequently challenged this decision in court, arguing that Mr Kipchumba's nomination violated constitutional provisions on gender balance, ethnic diversity, and representation of persons with disabilities.
She sought to have the gazette notice nullified, and herself declared the rightful nominee, citing her fifth-place position on ODM's party list and her status as a woman living with disability.
Mr Kipchumba opposed the petition, contending that the court lacked jurisdiction and that the matter should have been resolved through ODM's internal dispute mechanisms or the Political Parties Disputes Tribunal.
IEBC's lawyer, Charles Mwongela, also moved to have the case dismissed, citing Ms Mwami's failure to deposit the required Sh500,000 security for costs within ten days of filing the petition.
"Failure to deposit security for costs within statutory timelines breaches mandatory legal requirements, rendering the petition fatally defective, incompetent, and bad in law," Mr Mwongela argued.
Treasury Cabinet Secretary John Mbadi.
He further stated that the petition disclosed no reasonable cause of action against IEBC and failed to demonstrate any constitutional or Elections Act violations, maintaining that the commission had acted in accordance with the law.
In its decision, the court rejected arguments questioning its jurisdiction, ruling that disputes over party-list nominations become election matters once gazetted and must be adjudicated by an election court.
"Once gazettement occurs, a party's internal dispute resolution mechanisms and the Political Parties Disputes Tribunal are ousted of jurisdiction," Justice Janet Mulwa stated, referencing Supreme Court precedent.
However, the judge found Ms Mwami had not fulfilled a crucial statutory obligation. The Elections Act mandates that petitioners deposit security for costs within ten days of filing an election petition.
Ms Mwami filed her petition on August 19, but only deposited the security on September 29—approximately a month later. She sought an extension of time, citing difficulties with the judiciary's e-filing system and financial hardship.
The petitioner told the court she was unemployed, lived with disability, and relied on fundraising efforts and contributions from well-wishers to raise the required amount. She maintained the delay was unintentional and caused no prejudice since the funds were eventually paid.
The respondents countered that the law's provisions were mandatory and did not permit extensions based on personal circumstances.
Justice Mulwa concurred, ruling that while courts may grant extensions in meritorious cases, Ms Mwami had not provided sufficient evidence to justify her delay.
"The explanation advanced by the petitioner for non-compliance is quite peculiar and unsatisfactory," the judge remarked.
The court noted the absence of documentary proof showing attempts to raise funds or difficulties encountered with the e-filing system.
"Merely stating that the delay and eventual deposit depended on well-wishers providing funds does not suffice under these circumstances," the court ruled.
Additionally, the court observed that Ms Mwami had not acted promptly after depositing the security, only seeking an extension after the IEBC’s advocate applied to strike out the petition.
Given these procedural lapses, the judge held that the court could not proceed with the matter once an objection had been raised.
"The court is not persuaded to grant the reliefs sought in the petitioner's application," Justice Mulwa concluded.
Although the petition was dismissed, the judge declined to award costs against Ms Mwami, considering her plight as a person with disability and the preliminary stage at which the case was terminated.
The ruling affirms Mr Kipchumba's nomination and highlights the stringent procedural requirements governing election disputes in Kenya, even when constitutional representation issues are raised.
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