• The High Court had thrown out Waibara's election petition but the Appeal Court now wants it reheard by the lower court.
• Waibara says the IEBC violated the Constitution by allowing Wanjiku to run before resigning as MCA.
Gatundu North MP Anne Wanjiku is not off the hook yet even after the High Court validated her election on August 14 last year.
Her fierce political nemesis, Clement Waibara, has yet to give up on his bid to remove her and is optimistic that he will succeed in dethroning her from the seat.
Waibara, who is the former area MP, successfully appealed against the High Court decision that threw out his election petition in which he had named Wanjiku and the IEBC as respondents.
Waibara had filed a constitutional petition claiming that the right to vie for election as an MP is subject to the qualification criteria set out in Article 99 of the Constitution.
Article 99(2)(d) says a person is disqualified from being elected an MP if the person is an MCA.
Waibara, in the petition, claimed that Wanjiku did not qualify to vie for the seat as she did not resign as a nominated MCA. Wanjiku was nominated as MCA by TNA to the Kiambu county assembly in 2013.
Waibara said that Wanjiku, while serving as MCA with all the benefits and responsibilities accorded to that position, tendered her application to the Jubilee Party for nomination to contest the 2017 MP election as the party’s candidate.
Through a notice number 6253 of 2017, Wanjiku was gazetted as the duly nominated candidate to contest for MP on a Jubilee Party ticket.
“Wanjiku, with the express and assistance of [the] IEBC, knowingly violated the provision of the Constitution that prohibits election to the National Assembly of any person who holds the office of MCA,” the petition read.
Waibara further said that the IEBC failed to ensure Wanjiku was duly qualified under the Constitution and the applicable law for election as MP.
The former lawmaker said the IEBC knowingly or negligently failed to discharge its constitutional mandate in verifying Wanjiku’s qualifications, thereby causing a grave violation of the Constitution.
He said the commission, as a result, perpetuated an illegality that persists to date in breach of the Constitution and at the expense of the constituents of Gatundu North.
The Constitution requires sitting MCAs wishing to vie for elections as MPs to resign from office on or before the date of their application for nomination by political parties or upon nomination by their respective parties.
But in an earlier ruling by the High Court on August 14, 2019, Justice Lydia Achode threw out Waibara’s petition and ruled in favour of Wanjiku. She also ordered Waibara to bear the costs of the petition.
Waibara, however, proceeded to the Court of Appeal, where he successfully appealed against Achode’s ruling. A three-judge bench overturned the High Court decision but failed to invalidate Wanjiku’s election.
Instead, justices Asike Makhandia, Fatuma Sichale and Jamilla Mohammed sent the matter back to the High Court for fresh hearing and determination within six months.
The judges observed that the High Court had not conclusively determined the constitutional question raised by Waibara.
On Saturday, Waibara, who spoke to journalists in Thika, said he will not relent in his pursuit for justice. The Constitution must be followed to the letter in this matter, he said.
“I'll ensure Justice is served to Gatundu North constituents. No one is above the law and we are all guided by the constituents,” he said, adding that he is ready for a by-election.
He was, however, quick to add that there is no bad blood between the two of them, maintaining that all he seeks is to have the illegality perpetrated during Wanjiku's election is rectified, he said.
(Edited by F'Orieny)