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Is Karen Ward staring at a by-election after bribery conviction?

COUNTIES
By Josephat Thiong'o | May 15th 2021
 Karen Ward MCA David Mberia.[Samson Wire]

There is a legal quagmire over the fate of Karen Ward seat and whether a by-election is on the cards.

This is after MCA David Mberia was convicted of soliciting and accepting a Sh1.7 million bribe from a private school in February this year.

Mberia was fined Sh700,000 or serve a three-year jail term.

His woes were further compounded after an attempt in March to have the High Court set aside orders of the trial court, which barred him from holding public office, failed and the court directed that the judgment be served upon Nairobi County Assembly Speaker Benson Mutura.

And last month, his application for a stay of the sentence barring him from office pending hearing of his appeal- was declined, putting his seat on the verge of being declared vacant.

In her ruling, Justice Ngugi dismissed Mberia’s application and ruled it is not for the court to determine whether or not the Speaker will declare the seat vacant as a result of his conviction.

The judge further ruled that the court had not been shown a basis for staying the execution of a lawful judgment and sentence imposed against him under the Bribery Act.

"What this court can do is put in place administrative directions that enable the applicant to expeditiously prosecute his appeal and should it be successful, protect his entitlement to hold the public office that he seeks to protect," the judge ruled. 

According to the Bribery Act, Section 18(8) states that when a public or state officer is convicted of an offence under the Act, regardless of the penalty imposed, the officer shall be barred from holding public office.

This means when the county speaker declares a vacancy for the Karen, a by-election should be held.

Yesterday, Speaker Mutura confirmed that he had received communication on Mberia's conviction. He is however yet to announce a vacancy in the seat. "Yes, I have received a letter communicating the conviction, but the issue of declaring the position vacant does not lie with me. I do not have the powers. It is the IEBC that has the mandate and I can only communicate the same to the House," said Mutura.

But Mberia maintained that he has appealed the ruling barring him from office.

Constitutional expert and lawyer Bobby Mkangi however argues that is the speaker to communicate the vacancy in a seat following the court ruling. “In the case of Senator Isaac Mwaura, it was the Speaker who declared the vacancy by gazetting, so it is not the IEBC,” he said.

Mkangi, however says Karen residents may not hold a by-election just yet given that there is the requirement by law that all avenues of appeal must be exhausted.

“If there is an active appeal case against the conviction, then Mberia still sustains his office and a vacancy may not be declared right now until a verdict is arrived at. If there is no appeal then the relevant authorities starting with the speaker should declare vacancy and the IEBC begins organising a by-election immediately,” he added.   

But legal challenges on capability of the IEBC to conduct a by-election could also arise following a five-judge bench ruling on Thursday that declared the commission as lacking quorum to operate. 

Mkangi avers that the ruling puts the IEBC in a situation where they may not want to engage in anything beyond this point until there’s clarity and firm decision from the courts on their lack of quorum or until they are fully constituted as defined by the Constitution.

“If the ruling by the trial court is upheld by that of Court of Appeal, IEBC may also not want to touch it and the seat may remain vacant for a while maybe until the general election; consequently, raising the question on how the right of the people in Karen will be represented,” he said.  

Mberia’s troubles began in April 2020, when he was arrested alongside Mathare North Ward MCA Jared Okode and Woodley/Kenyatta Golf Course MCA Mwangi Njihia for conspiring to commit corruption.

The three were arrested for allegedly receiving a Sh1 million bribe to influence the outcome of an inquiry that was to be carried out by a House committee.

The three were to get money from Mr Samuel Maina Kiragu, one of the owners of Kiragu Waichahi Private School, to resolve a land dispute. In a ruling by Senior Principal Magistrate Thomas Nzioki, Okode and Njihia were let off the hook but Mberia was found guilty of receiving Sh1.7 million bribe from Kiragu.

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