Gatundu North MP Anne Wanjiku Kibe, whose election was validated by the Supreme Court last year, is facing a fresh challenge.
A new application filed at the High Court by her rival, Clement Kung’u Waibara, wants the court to declare the seat vacant.
Both Ms Kibe and the Independent Electoral and Boundaries Commission (IEBC) are named as respondents.
Mr Waibara, a former MP, claimed that Kibe did not qualify to vie for the seat since she had not resigned as a nominated MCA at the time of the polls.
She had been nominated by the now defunct The National Alliance (TNA) to the Kiambu County Assembly in 2013.
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Waibara argued that Kibe was nominated by the Jubilee Party to contest for a parliamentary seat even when she was receiving all the benefits due to a seating MCA.
“Kibe, with the assistance of IEBC, knowingly violated provisions of the Constitution that prohibits election to the National Assembly of any person who holds the office of MCA,” read the application.
Waibara further argued that IEBC failed to discharge its mandate by allowing Kibe to contest for the seat, even when she was not qualified.
“IEBC knowingly or negligently failed to discharge its constitutional mandate in verifying the qualifications of Kibe, and thereby caused a grave violation of the Constitution.”
Kibe won the Gatundu North seat by garnering 39,447 votes against Waibara’s 9,390 votes.
Waibara argued that the Constitution required sitting MCAs wishing to vie for elections as MPs to resign from their respective offices on, or before, the date of their application for nomination by political parties.
“Hon Kibe was not qualified for election to the said position as she was at the material times still holding office as an MCA in the Kiambu County Assembly,” said Waibara.
The petitioner is seeking a declaration by the court that Kibe was not qualified for election as MP in the August 8, 2017, election pursuant to the Constitution of Kenya 2010.
He is also praying for an order declaring the election invalid.
Waibara is requesting an order directing the Speaker of the National Assembly to issue IEBC with a written notice of the vacancy of the MP’s seat.
He is also petitioning the court to grant an order requiring IEBC to hold a by-election for the position of MP in Gatundu North.
According to legal experts, the suit could end up opening a Pandora’s box given that there are more than 10 sitting MPs and senators who were nominated MCAs before they were elected to their current seats.
Waibara in September 2017 filed a petition at the High Court in Kiambu challenging Kibe’s win, claiming that the election was not free and fair.
Then Kiambu High Court Judge Joel Ngugi in March last year nullified the election, saying it had been marred by irregularities that had affected its outcome.
Kibe went to the Court of Appeal and in July 2018 the judges ruled in her favour, declaring the election fair.
Waibara took the case to the Supreme Court and in January 2019, it upheld Kibe’s election.