The court battle between political nemesis former Gatundu North MP Clement Waibara and incumbent Wanjiku Kibe might not end any time soon.
The two have been in a court battle since 2017, with Waibara seeking the nullification of Wanjiku's win.
He claims Wanjiku did not qualify to vie for the seat as she did not resign as a nominated MCA. Wanjiku was nominated as MCA to the Kiambu county assembly by TNA in 2013.
On October 7, 2020, Wanjiku’s seat was declared vacant by High Court judge Weldon Korir. The judge ruled that she was illegally elected because at the time of submitting her nomination papers, she was still a nominated MCA.
"I declare and hold that the seat of the Member of the National Assembly for Gatundu North constituency currently held by Wanjiku Kibe, has become vacant by the operation of Article 103 (1)(g) of the Constitution," the court ruled.
In the case, Waibara had challenged her election and the Court of Appeal had directed that the matter be heard by a constitutional court.
Waibara had filed a constitutional petition claiming that the right to vie for election as an MP is subject to qualification criteria as set out in Article 99 of the Constitution.
Article 99 (2) (d) states that a person is disqualified from being elected a Member of Parliament if the person is a member of a county assembly.
Waibara said the Constitution requires sitting MCAs wishing to vie for election 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.
In his judgment, Korir noted that evidence shows Wanjiku was still a nominated MCA on June 27, 2017, when her nomination to run for the Gatundu North MP was gazetted by the Independent Electoral and Boundaries Commission.
“It, therefore, follows that at the time of her election on August 8, 2017, she was ineligible for election as a Member of Parliament as she was disqualified by Article 99(2)(a)and(d) of the Constitution from contesting,” Korir ruled.
“Her participation in the election and her subsequent election was therefore unconstitutional, null and void.”
But Wanjiku moved to the Court of Appeal on October 9, 2020, and filed a notice of appeal, saying that she was dissatisfied with Justice Korir’s ruling.
On October 28, Court of Appeal judges Martha Koome, Daniel Musinga and Sankale ole Kantai suspended the decision of the High Court that declared Wanjiku’s seat vacant pending the determination of her appeal.
But Waibara has now moved to the same court seeking to have Wanjiku’s appeal thrown out for being time-barred.
Waibara through his lawyer Jackson Awele in the application dated April 6, 2021, claimed that Wanjiku’s appeal was time-barred. He argues that the Court of Appeal failed to deliver a ruling on her appeal as per the six-month statutory deadline.
The petitioner argued that Wanjiku ought to have filed her appeal within 30 days of the judgment delivered by the High Court but failed to do so, thereby violating the Elections Act and Election Petition Rules.
“In the instant case, the appeal ought to have been filed by or before November 7, 2020 and determined by or before April 7, 2021. The record of appeal herein was filed on November 24, 2020, well over 14 days late and the judgment is similarly yet to be delivered well past the six months statutory deadline,” Waibara's application reads.
“The aforementioned time periods are cast in stone and cannot be extended or in any way excused by the court. The appeal is accordingly non-suited and/or fatally and irredeemably defective.”
He urged the Court of Appeal to urgently determine the proceedings to ensure that the High Court judgment is not rendered academic.
Edited by A.N
