Mariga’s candidature faces new legal hurdle

Jubilee aspirant for Kibra by-election McDonald Mariga accompanied by Gospel artist Roughtone at Lindi Central PAG Church in Kibera. [Collins Kweyu]

A Kibra voter has filed a suit at the High Court, accusing the Independent Electoral and Boundaries Commission (IEBC) of irregularly clearing footballer McDonald Mariga to run in the November 7 by-election.

The petitioner, Leina Konchella, argues that Mariga is not a duly registered voter since his name is not in the voters’ register.

“Consequently, Mariga is therefore not a registered voter and as such, has not met the requirements of Article 99, (1) (a) of the constitution to be eligible to vie for the seat of a Member of National Assembly, Kibra constituency,” reads the suit filed on Friday.

In a similar dispute involving lawyer Kethi Kilonzo in 2013, a three-judge bench ruled that only a person whose name is included in “a current register of voters” is deemed to be a duly registered voter.

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“Section 2 of the Act defines the word “Voter” to mean “a person whose name is included in a current register of voters”. The same Section 2 defines a “Principal Register of Voters” as “a current register of persons entitled to vote at an election prepared in accordance with section 3 and includes a register that is compiled electronically,” ruled the judges.

Justices Richard Mwongo, Mumbi Ngugi and Weldon Korir ruled that an acknowledgement slip without the backing of the principal register was not proof of registration as a voter.

Earlier, IEBC returning officer, Beatrice Muli had annulled the Jubilee Party nominee’s candidature on grounds that although Mariga had registered as a voter, his details were not available in commission’s register.

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But the IEBC disputes tribunal overturned the decision last Monday, stating that voter registration exercise was a continuous process and simultaneous update of the voters’ register should be efficient to achieve real time update.

The Wafula Chebukati-led commission will now have to convince the High Court whether Mariga’s name as a voter had been updated in the register by the time candidates were supposed to be cleared by the commission.

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The footballer registered as a voter on August 26, 2019 at Kariakor Social Hall polling station in Starehe Constituency after IEBC had suspended voter registration in Kibra.

The petitioner has further accused IEBC for ignoring inconsistency in the documents Mariga used to apply for nomination.

“The decision by IEBC’s Dispute Resolution Committee on September 13 to expunge paragraphs 12-15 of the petitioner’s supporting affidavit from the proceedings and further failing to look into the integrity and authenticity of the nomination papers produced by Mariga is a contravention of Article 88 (4) (e) and (5) of the constitution,” states the petitioner in the suit.

Konchellah notes that Mariga’s identity card indicates that he was born in April 1987 while his Kenya Certificate of Secondary Education examination document indicates he sat the national examination in 2002.

The suit seeks to stop IEBC from printing ballot papers for Kibra by-election until the High Court pronounces itself on the matter.

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