High Court Judge Weldon Korir has declared the Gatundu North seat vacant after the election of MP Annie Wanjiku Kibe was voided.
This means that the Independent Electoral and Boundaries Commission (IEBC) will now have to conduct a fresh parliamentary election so voters can elect a new legislator.
In his ruling, Justice Weldon Korir indicated that Ms Kibe was not validly elected due to violation of election laws.
Former MP Clement Kung'u Waibara has been seeking to invalidate her election on grounds that Ms Kibe was not qualified to vie for the parliamentary seat since she had not resigned as a nominated representative of the Kiambu County Assembly at the time.
Former Gatundu North MP Clement Waibara.
Photo credit: File | Nation Media Group
Justice Korir, in his ruling today, agreed with the ex-MP's argument noting that the election of the first time MP was unconstitutional. He stated that she was not qualified to vie for the parliamentary seat because she was still serving as a nominated MCA in 2013.
Ms Kibe’s election had been nullified in 2018 only for the Court of Appeal to overturn the decision, handing the former vernacular radio presenter a new lifeline.
The court had ruled that the anomalies found in the August 8, 2017 election results were administrative errors, which were not substantial enough to nullify the election.
However, Mr Waibara, who had challenged her election, did not give up and launched a fresh bid before the constitutional court. The matter went back to the Court of Appeal and a bench of three judges heard his plea and returned the case to the High Court for fresh hearing.
"The appellant has raised a new question for interpretation under article 105 (1) (B) of the Constitution that has not been determined by any competent court. We find that the trial court erred in equating the contest herein as being based on the validity of the election of Ms Kibe," said Justices Asike Makhandia, Fatuma Sichale and Jamilla Mohammed.
Mr Waibara argued that Ms Kibe, while serving as an MCA with all the benefits and responsibilities accorded to that position, tendered her application to the Jubilee Party for nomination to contest in the 2017 MP election as the party’s candidate.
Through lawyers Jackson Awele and Evans Ondieki, he convinced the court that IEBC committed a constitutional illegality by allowing a sitting MCA to vie for the parliament seat.
Mr Awele submitted that the Constitution expressly disqualifies sitting MCAs from election to Parliament and that it does so twice at Article 99 (2) (A) and (D).
“The Constitution additionally creates express stand-alone mechanisms for their removal and that can be invoked at any time distinctly from an election petition, brooks no two meanings and should be given the intended effect,” he noted.
The court heard that on June 27, 2017 Ms Kibe was gazetted by the electoral commission as a contestant of the parliamentary seat.
“Even though she had the option to resign, there is no evidence that she did prior to or after her nomination (by the Jubilee Party). In the circumstances, it is beyond per adventure that Ms Kibe was as at the date of her nomination still a sitting MCA enjoying attendant monetary and non-monetary benefits,” Mr Waibara told the court.
And on Wednesday, Justice Korir declared the seat vacant, while directing that the decision be forwarded to the Speaker of National Assembly for appropriate action.
