Clement Kungú Waibara v Anne Wanjiku Kibeh & another [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Constitutional and Human Rights Division
Category
Civil
Judge(s)
W. Korir
Judgment Date
October 07, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Clement Kungú Waibara v Anne Wanjiku Kibeh & another [2020] eKLR, highlighting key legal principles and outcomes for better understanding of this significant ruling.


Case Brief: Clement Kungú Waibara v Anne Wanjiku Kibeh & another [2020] eKLR

1. Case Information:
- Name of the Case: Hon. Clement Kung’u Waibara v. Hon. Anne Wanjiku Kibeh & The Independent Electoral & Boundaries Commission (IEBC)
- Case Number: Petition No. 210 of 2020 (formerly Kiambu H.C. Petition No. 8’B’ of 2019)
- Court: High Court of Kenya at Nairobi, Constitutional & Human Rights Division
- Date Delivered: 7th October 2020
- Category of Law: Constitutional Law
- Judge(s): W. Korir
- Country: Kenya

2. Questions Presented:
The central legal issue before the court is whether the seat of the Member of the National Assembly for Gatundu North Constituency should be declared vacant under Article 99(2)(d) and Article 103(1)(g) of the Constitution, due to the 1st Respondent's alleged disqualification based on her previous status as a Member of the County Assembly.

3. Facts of the Case:
The petitioner, Hon. Clement Kung’u Waibara, contested the election of Hon. Anne Wanjiku Kibeh, who was elected as the Member of Parliament for Gatundu North Constituency in the General Election on 8th August 2017. Kibeh was previously a nominated Member of the County Assembly (MCA) and contested for the parliamentary seat on a Jubilee Party ticket. The petitioner argues that under Article 99(2)(d) of the Constitution, a sitting MCA cannot be elected as an MP without resigning from their position, thus rendering her election unconstitutional.

4. Procedural History:
The case progressed from an initial dismissal by the High Court, which was appealed by the petitioner. The Court of Appeal ruled in favor of the petitioner, leading to a retrial in the High Court. The petitioner asserted that the 1st Respondent's actions violated constitutional provisions, while the respondents contended the petition lacked merit and misinterpreted the Constitution.

5. Analysis:
- Rules:
The court considered Article 99(2)(d) of the Constitution, which disqualifies MCAs from being elected as MPs, and Article 103(1)(g), which defines circumstances under which a parliamentary seat can become vacant. The Elections Act, 2011, particularly Section 22(1)(a), was also relevant in determining candidate eligibility.

- Case Law:
The court referenced previous rulings, including *Kennedy Moki v. Rachel Kaki Nyamai & 2 others* and *Advisory Opinion No. 2 of 2012*, which established that elections encompass multiple stages, including nominations, and emphasized the importance of eligibility criteria in electoral processes. The respondents cited the *Karani Case*, arguing that it distinguished between nominations and elections, asserting that an MCA could be nominated without resigning.

- Application:
The court applied the rules to the facts by interpreting the constitutional provisions and the Elections Act. It found that the 1st Respondent was indeed a sitting MCA at the time of her nomination and election, thus disqualifying her under Article 99(2)(d). The court concluded that her election was unconstitutional, leading to the declaration of her seat as vacant.

6. Conclusion:
The court ruled that the seat of the Member of Parliament for Gatundu North Constituency held by Hon. Anne Wanjiku Kibeh was declared vacant due to her disqualification as stipulated in Article 99(2)(d) of the Constitution. The ruling underscored the importance of adhering to constitutional provisions regarding eligibility for election.

7. Dissent:
There were no dissenting opinions noted in the judgment; however, the respondents maintained that the interpretation of the relevant constitutional provisions was flawed and that the Karani Case should be upheld.

8. Summary:
The High Court of Kenya ruled that the election of Hon. Anne Wanjiku Kibeh as the Member of Parliament for Gatundu North was unconstitutional due to her failure to resign from her position as an MCA before contesting. This decision emphasized the necessity of compliance with constitutional provisions regarding eligibility for public office and the integrity of the electoral process. The court directed that a by-election be held to fill the vacant seat.

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