MCAs who switch parties will not lose their seats, High Court

Justice Joel Ngugi.

MCAs who have resigned from their sponsoring political parties ahead of the August elections will not lose their seats, a Nakuru court has ruled.

High Court judge Joel Ngugi, on Friday, ordered speakers of all the county assemblies not to declare seats of ward representatives who switched political parties vacant following an application by the MCA of Kabazi Ward in Nakuru County, Peter Mbae who sought to challenges such a move.

The judge noted that Dr Mbae had demonstrated that irremediable injury to the political rights of the citizens could occur if the conservatory orders stopping possible declaration of the seats of the affected MCAs are not granted.

Justice Ngugi noted that Mbae's application met the threshold of Article 165(4) of the Constitution which states that matters raising substantial questions of law shall be heard by an uneven number of at least three judges assigned by the Chief Justice. Mbae moved to court to save the MCAs from losing their seats once they resign from their political parties. He noted that speakers are required to declare seats vacant on the final date set by the Independent Electoral and Boundaries Commission (IEBC) for verification and closure of party membership registers for purposes of the General Election scheduled for August 9.

Justice Ngugi referred the petition filed on February 25 to Chief Justice Martha Koome so she can assign judges to hear and determine it.

“The matter is urgent, of public interest, and shows there is a state of uncertainty in the law. For interpretation, the Deputy Registrar is directed to forward the file to Chief Justice Martha Koome," Ngugi ruled.

He noted that business in county assemblies could be crippled if many MCAs will have their seats declared vacant. Ngugi dismissed an objection to the application by Mr John Kairu, the speaker of Nakuru County assembly, saying it lacked merit.

Kairu, in his objection, said Mbae’s application did not present any serious or arguable constitutional points and insisted that an MCA who resigns from the party that sponsored them must lose their seat. Mbae had sued Kairu and the Attorney General. He had also listed speakers of all county assemblies as respondents in his case. The IEBC and the Registrar of Political Parties were listed as interested parties.

He challenged Kiaru’s communication on February 22 demanding that MCAs wishing to change political parties should also resign from their seats.

Kairu, in his communication, reproduced the provisions of Article 194 of the constitution and sections 14(2) and (3) of the political parties. The Act demands persons who wish to contest the next General Elections on parties other than the ones that sponsored them in 2017 to resign from the said parties and their respective seats as MCAs.

Mbae submitted that it would be impossible to refill such vacancies should such members resign, a move he said would cause people in affected areas to suffer due to lack of representation in county assemblies for the remainder of the term.