Eric Wainaina @EWainaina

Positions of 10 legislators who previously served as members of county assemblies could be in jeopardy if Court of Appeal judges agree with an argument by a petitioner that they ought to have resigned before contesting parliamentary seats.

This is after appellate judges last week set aside a decision by the High Court in which former Gatundu North MP Clement Waibara has been seeking nullification of MP Wanjiku Kibe’s election, on grounds that she was not eligible to contest because she was still a nominated MCA in Kiambu County Assembly.

While the matter focuses on Wanjiku who has been listed as the first respondent, if the judges agree with Waibara that MPs who served as MCAs between 2013-2017 were not qualified to vie for Parliament, the decision could affect nine other politicians.

They include Kakamega Senator Cleophas Malala (former Mahiakalo MCA), Nakuru Senator Susan Kihika, who served as county Speaker, and Kilifi Woman Rep Gertrude Mbeyu, who contested while in office as Kibarani Member of County Assembly.

Mombasa Woman Rep Asha Mohamed and Maragwa MP Mary Waithira, who are former nominated MCAs, could also be affected.

Others are Laikipia Woman Rep Cate Waruguru, who was a nominated MCA, former Laikipia Speaker Patrick Mariru, who is the Laikipia West MP, Kisumu Central MP Fred Ouda, who was the Gem Central ward rep and former Keekonyokie MCA George Sunkuyia, who rose to become the Kajiado West MP.

Grave violation

Waibara, who served as MP between 2007 and 2013, had filed a petition seeking Wanjiku’s ouster, arguing that she was cleared to contest by the Jubilee Party and the Independent Electoral and Boundaries Commission while serving as a nominated MCA, which, he argues, was a “grave violation of the Constitution”.

The former MP has anchored his petition on Article 99 of the Constitution, which highlights grounds for qualifications for election as MP.

He argues that according to Article 99 (2) (d) of the Constitution, a person is disqualified from being elected a Member of Parliament if the person is, among other eight things, “a member of a county assembly”.

“By dint of Article 177(4) of the Constitution, she was to serve as an MCA Kiambu County for a period of five years from July 17, 2013. Her term was set to expire on August 8, 2017 following the General Election of that year,” he argues.

According to Waibara, Wanjiku who defeated him, was nominated and gazetted on June 27, 2017, as the duly nominated Jubilee Party candidate to contest the 2017 general election for the seat of MP Gatundu North Constituency,” reads the appeal case documents.

Wanjiku, a former broadcaster, according to the petition, was nominated by the now defunct The National Alliance to serve as a nominated MCA in the Kiambu County Assembly on July 17, 2013.

Justice Lydia Achode, in her ruling last year, dismissed the case with a cost of Sh1 million payable to Wanjiku and the electoral commission, on grounds that the matter was a clever afterthought by Waibara to have a time-barred petition litigated.

This, she said, was because Section 76 (1) A of the Election Act requires that a petition be filed within 28 days after the declaration of the winner and be concluded within six months and in which the issues of the petition were addressed.

Not eligible

Further, the legitimacy of Wanjiku’s victory, the court said, was addressed in another petition filed by Waibara and which was dismissed by the Supreme Court in her favour, noting that a litigant cannot file another suit to remedy failure of a case which was dismissed for lack of merit.

“It is thus evident that this is an attempt by the petitioner to have a second bite at the cherry and reintroduce a suit that was properly heard and finally determined on merit by a court of competent jurisdiction,” read the ruling.

Waibara, in his petition, had claimed that according to information supplied by Kiambu County Assembly, Wanjiku was holding the position of MCA on the date of the election since she received her salary and benefits up to August 8, 2017, and therefore “only ceased being a member as such from the said date”.

And so, according to Waibara, Wanjiku was not eligible to vie since during the time of the election, she was still an MCA because her term was not over and that she had not resigned as required by law.

Fresh trial

The former lawmaker, therefore, argues that Wanjiku’s election was “incurably invalid and it is imperative, fair and in the interests of justice and the rule of law that the seat of the Member of the National Assembly, Gatundu North Constituency, be declared vacant”.

Last week, judges Asike-Makhandia, Fatuma Sichale and Jamila Mohammed vacated the ruling that was made in August last year and directed that the case be heard within the next six months.

“That the order dismissing the petition herein made on August 14, 2019 be and is hereby vacated and set aside.”

The petition has been submitted to the Constitutional and Human Rights Division of the High Court for a new trial.