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Court to handle fresh trial on MP’s qualification to vie for the seat

By Everlyne Kwamboka | June 25th 2020

Gatundu North MP Wanjiku Kibe speaks at a Nairobi hotel where she had met Water CS Simon Chelugui and other Kiambu MPs. [George Njunge, Standard]

The Court of Appeal has ordered for a fresh hearing of a petition challenging Gatundu North MP Anne Wanjiku Kibe’s qualifications to contest for the parliamentary seat in 2017.

The judges said the High Court’s Constitutional and Human Rights Division was to only handle the interpretation of the Constitution in the petition and not the validity of the MP’s election.

Justices Asike Makhandia, Fatuma Sichale and Jamila Mohamed said the new hearing was to be on a priority basis.

The judges said the court’s jurisdiction could be invoked at any time during the life of Parliament and that such a petition must be heard within six months in accordance with the Constitution.

“It, therefore, follows that the question whether a seat has become vacant falls squarely within the mandate of the High Court and this question with respect to the MP of Gatundu North Constituency is yet to be determined by a competent court,” reads part of the judgment delivered last Friday.

The verdict was issued after finding that the High Court wrongly dismissed the matter by handling it as an election petition.

The question was whether the MP was qualified to vie for the 2017 General Election when she was still a member of county assembly with a monthly salary and all the other benefits and responsibilities accorded to that position.

Article 99(2)(d) of the Constitution disqualifies a person from being elected as MP if s/he is an MCA.

Former MP Clement Waibara had argued that the Independent Electoral and Boundaries Commission knowingly or negligently failed to discharge its constitutional mandate in verifying the sitting MP’s qualifications, thereby causing a grave violation of the Constitution.

Justice Lydiah Achode, who handled the matter at the High Court, is said to have ignored “the weighty constitutional questions posed by Waibara, thus occasioning a serious miscarriage of justice and prejudice to the public interest.”

The High Court dismissed the petition for lack of merit, which saw Waibara move to the Court of Appeal on grounds that Kibe’s qualification was not determined in two decisions delivered on the merit of the petition and an election appeal.

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