The High Court has declared the Gatundu North Constituency seat vacant, paving way for Independent Electoral and Boundaries Commission (IEBC) to conduct a fresh parliamentary election.
Judge Weldon Korir on Wednesday found that the current Member of Parliament Anne Wanjiku Kibe was not eligible to vie for the seat as she was still a member of the County Assembly (MCA) when she was nominated to vie as an MP under the Jubilee ticket.
The parties involved had wanted to know whether the MP was qualified to vie for the 2017 General Election when she was still an MCA with a monthly salary and all the other benefits and responsibilities accorded to that position.
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Article 99 (2)(d) of the Constitution disqualifies a person from being elected as MP if s/he is an MCA.
In a petition filed by former MP Clement Kung'u Waibara, the court agreed with Waibara's lawyer Jackson Awele that she ought to have resigned before the nomination date.
In June, the Court of Appeal ordered a fresh hearing of a petition challenging her qualifications to contest for the seat in 2017.
This is after 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.
The Court of Appeal judges then ruled that 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 ruled 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,” read part of the judgment.
The verdict was issued after finding that the High Court wrongly dismissed the matter by handling it as an election petition.