Banisa by-elections UDA nominee Ahmed Malim (mid)/XThe High Court has cleared United Democratic Alliance (UDA) candidate Ahmed Malim Hassan to contest in next week’s Banisa Constituency by-election.
This follows a dismissal of a petition that sought to block his candidature on grounds of dual citizenship.
Delivering his judgment on Thursday, Justice Lawrence Mugambi found the case premature, speculative, and legally misdirected.
He noted that the petitioner had improperly invoked the court’s constitutional jurisdiction to challenge a matter already handled by the Independent Electoral and Boundaries Commission’s (IEBC) Dispute Resolution Committee (DRC).
The petition, filed by a voter, had argued that Hassan, alleged to be a dual citizen, was ineligible for nomination unless he first renounced his foreign citizenship.
But Justice Mugambi held that the petition rested on “quicksand,” both in procedure and substance.
"The dispute is premature and speculative as the first respondent has only offered himself as a candidate," the judge observed.
He said electoral disputes must follow the strict dispute-resolution chain under Article 87 of the Constitution, which provides for pre-election disputes to be ventilated before the IEBC, with any challenges thereafter pursued through judicial review—not through a fresh constitutional petition framed as a rights violation claim.
Citing Supreme Court authority, the judge emphasised that allowing parties to repackage electoral grievances as constitutional petitions risked creating a parallel system that undermines the character of electoral dispute resolution.
“The petitioner cannot invoke the original constitutional jurisdiction of this court to assail the decision of the second respondent,” he ruled, explaining that any aggrieved party must approach the court under its supervisory or judicial review jurisdiction in line with Article 165(6).
On the substantive argument regarding dual citizenship, Justice Mugambi said even if dual citizenship were proved—which it had not—the claim was premature.
The constitutional bar, he noted, applies only to persons already elected or appointed as State officers, not to prospective candidates offering themselves for election.
“He has only offered himself as a candidate and is not a State officer. Why not wait for the facts to crystallise?” the judge posed.
The court found that insisting on renunciation before an election would offend the doctrine of ripeness and unjustifiably curtail a candidate’s right to hold dual citizenship.
A mandatory renunciation at the nomination stage, the judge said, would be “too early and prejudicial” given the uncertainty of electoral outcomes.
Having resolved the questions of jurisdiction and substance, Justice Mugambi concluded that the petition was devoid of merit and dismissed it with costs to the respondents—including the IEBC and Hassan.
With the dismissal, Hassan is now cleared to appear on the ballot for the Banisa by-election scheduled for November 27, ending the last legal hurdle to his candidature.
