Gatundu North Member of Parliament Wanjiku Kibe has lost her seat.
In a culmination of a four-year battle, former MP Kung'u Waibara got victory after the High Court in Nairobi yesterday declared that Ms Kibe's nomination to vie for the seat on a Jubilee Party ticket in the last election was invalid.
In an election petition that moved all the way to the Supreme Court and back again to the High Court Justice Weldon Korir’s decree has paved the way for a by-election which should be conducted within 90 days.
The judge said by the time Kibe got her nomination certificate on June 27, 2017, she was yet to resign as a Nominated MCA at Kiambu county assembly.
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Justice Korir agreed with Waibara’s lawyer Jackson Awele that unless an MCA or a State officer resigns before the nomination date, they cannot contest for either parliamentary or a presidential seat.
Awele argued that both the Constitution and the election laws bar MCAs and governors from seeking nomination for other elective seats unless they relinquish their positions.
He argued that MPs, the president and deputy president cannot also seek for any seat in the counties unless they have resigned.
The lawyer accused the Independent Electoral and Boundaries Commission (IEBC) of deliberately failing to discharge its mandate in verifying Ms Kibe's qualifications thereby causing a grave violation of the Constitution.
Mr Waibara who lost to Ms Kibe in the last election will now have another chance to recapture the seat.
“The undisputed evidence shows that the respondent (Wanjiku) was a nominated MCA when she was nominated to vie for the parliamentary seat, thus, she was ineligible to vie. Her nomination and subsequent election are null and void. I declare and hold that the Gatundu North Constituency MP’s seat has become vacant,” Justice Korir declared.
The judge said MCAs cannot also vie in a by-election.
“Article 99(2) bars MCAs from contesting an MP’s seat without first vacating their offices as State officers. The same legal regime applies both to the election and by-election. Political parties need to ensure those they nominate meet the Constitution and election law requirements,” the judge ruled.
He continued: “The IEBC has no power to authorize a person barred by law to vie for any seat in the two houses of Parliament.”
Kibe won the seat by 39,447 votes against Waibara’s 9,390. She was the only woman elected to Parliament in the 12 constituencies of Kiambu County.
She had claimed the will of the people could not be invalidated over procedural gaps. Kibe said her party and IEBC looked into all requirements before issuing her with a nomination certificate.
Her fight for survival started after an election court judge Joel Ngugi, in 2017, declared that the Gatundu North Constituency election was marred by irregularities. Aggrieved, she moved to the Appeals Court and won.
However, Waibara filed a petition seeking an interpretation on whether Kibe was qualified to vie for seat.
The High Court dismissed Waibara’s case which was later reinstated by the Appeals Court. The case was confirmed by the Supreme Court which directed that it should be heard afresh by the High Court.
Appeal Court justices Asike Makhandia, Fatuma Sichale and Jamila Mohamed noted that the High Court wrongly dismissed Waibara’s case by handling it as an election petition.
And after the hearing which took two months, Justice Korir agreed with Mr Waibara that Ms Kibe was not qualified to vie for the seat. The judge directed IEBC to conduct a fresh election.