The Independent Electoral and Boundaries Commission (IEBC) is scratching its head for a suitable mechanism to fill the vacancy in the National Assembly that was left after nominated MP Joseph Denar died in a road accident in Nairobi.
Denar, who died on December 6, 2025, was nominated to the National Assembly on the ticket of Prime Cabinet Secretary Musalia Mudavadi’s ANC party, which folded early this year to join President William Ruto’s UDA party.
National Assembly Speaker Moses Wetang’ula is yet to issue writs declaring the seat vacant for the IEBC to take over the process of filling the void. Nonetheless, it would have been easy to fill the vacancy left by the MP if he were an elected member.
MP Denar Joseph Hamisi dies aged 56.
Photo credit: Pool
However, the elephant in the room is how the IEBC will navigate the legal terrain to fill the slot, considering that ANC, which was allocated the slot on the basis of votes received in the August 9, 2022, general election, folded and is therefore nonexistent.
IEBC Chairman Erastus Ethekon was not available for a comment as he is outside the country on official duty.
But the question which none of the IEBC commissioners would want to tackle on behalf of their chairman is, now that ANC no longer exists, which party inherits its fortunes and liabilities, including taking up the vacant slot in the National Assembly?
“It is unprecedented. It has never happened before. Only the chairman will issue the commission’s official position on the matter after deliberation at the plenary,” said an IEBC commissioner who did not want to go on record.
Article 101 (2) of the Constitution provides for the processes of filling a vacancy in the office of a nominated member in the National Assembly and the Senate whenever it arises.
The Article states that whenever such a vacancy occurs, the respective Speaker shall, within 21 days of the occurrence of the vacancy, give notice in writing of the vacancy to the IEBC and the political party on whose party list the member was nominated.
The Article goes on to state that the vacancy shall be filled within 21 days of the notification by the respective Speaker to the IEBC.
However, in the event the vacancy has occurred three months immediately before a general election, the constitution says such a vacancy shall not be filled.
On March 7, 2025, former Registrar of Political Parties Ms Anne Nderitu, now a commissioner with the IEBC, formally announced the voluntary dissolution of ANC, a culmination of the process that started in 2024.
The decision was formally carried in the gazette notice of March 14, 2025. “Amani National Congress (ANC) stands dissolved,” Ms Nderitu said in the gazette notice while making reference to the party’s decision that was taken at its Special National Delegates Congress on February 7, 2025.
“ANC resolved to voluntarily dissolve in line with its party constitution,” the gazette notice reads.
The fallen MP was ranked top, followed by Ms Petronilla Ogoti and Mr Salim Mohammed Busaidy and others in that order, including former Mudavadi’s private secretary and close ally, Mr Kibisu Kabatesi, at position seven.
Had the ANC party not wound up, the slot would have easily gone to Mr Busaidy because it was a seat allocated to the category of men in the party list.
However, following the gazette notice that announced the party’s dissolution, it means that the party list does not exist and therefore, cannot be the basis of selecting the deceased MP’s successor.
But even as the IEBC commissioners kept off the matter, Nation is informed that the legal team at the commission is busy flipping through legal materials to ensure that it provides the commissioners with the required advice on the best way forward.
The legal team, however, will not rule out advising the commission to petition the Supreme Court for an advisory opinion on the manner of filling the vacancy within the required time.
According to city lawyer David Ochami, the matter is uncharted waters for the IEBC because the political party that nominated the deceased MP ceased to exist through voluntary dissolution, and the dissolution took immediate legal effect.
Mr Ochami also noted that IEBC will be required to determine who inherits the ANC's fortunes and liabilities after it legally ceases to exist.
“It is a grey area that our laws did not contemplate. Shall we assume that because the ANC party is in UDA, its assets, benefits and votes devolved to UDA as its successor? On what basis can such a determination be made?” Mr Ochami poses.
Prime Cabinet Secretary Musalia Mudavadi during an interview in his office in Nairobi on May 22, 2025.
Photo credit: Dennis Onsongo | Nation Media Group
Mr Ochami notes that because former ANC leader PCS Mudavadi decided to self-immolate, he is at UDA’s mercy.
This, he says, goes against Article 91 of the Constitution of Kenya and the Political Parties Act that intends to enable the establishment of strong and distinct political parties based on ideology.
“It was never envisaged that political parties would be created, solely to contest an election and dissolve immediately, thereafter at the whim of its party leader. The law was created to avert this political prostitution,” says Mr Ochami.
The city lawyer noted that the defunct ANC and its followers must suffer the consequences of its past prostitution, self-immolation and voluntary slavery, “without expecting the law to rescue them, because that opportunity to complain does not exist.”
DCP leader Justin Muturi, the immediate former Attorney-General, says that ANC did not have post post-election agreement with UDA and chose to dissolve voluntarily, meaning that the party doesn't exist.
"Just like anything soluble, ANC dissolved and can never be retrieved in the form it existed," says Mr Muturi, the immediate former Speaker of the National Assembly.
