What you need to know:
In the case, Mr Waibara says Ms Wanjiku was not qualified to vie for the parliamentary seat since, on the date of her election in the 2017 General Election, she had not resigned as a nominated ward rep in the Kiambu County Assembly.
Gatundu North MP Anne Wanjiku Kibe is facing a fresh bid to nullify her election after her predecessor, Clement Kung’u Waibara, moved to the Court of Appeal seeking the seat to be declared vacant.
In the case, Mr Waibara says Ms Wanjiku was not qualified to vie for the parliamentary seat since, on the date of her election in the 2017 General Election, she had not resigned as a nominated MCA in the Kiambu County Assembly.
But the hearing of the appeal by a three-judge bench comprising Justices Jamila Mohammed, Asike Makhandia and Martha Koome in Nairobi on Wednesday aborted as one of the judges was said to be indisposed.
Mr Waibara protested the development, saying the lapse of a six-month timeline for hearing and determination of the matter is approaching.
As a result, Mr Waibara wrote to the President of the Court of Appeal, Justice William Ouko, seeking an urgent intervention to have the case fixed for hearing on the earliest date possible.
The politician said his case faces imminent miscarriage of justice due to the delayed trial.
In his court documents, Mr Waibara states that on June 27, 2017, while serving as MCA with all attendant benefits and responsibilities, Ms Wanjiku was gazetted by the electoral commission as a contestant for the parliamentary seat. Ms Wanjiku vied on a Jubilee Party ticket.
According to him, the Independent Electoral and Boundaries Commission (IEBC) participated in committing a constitutional illegality by allowing Ms Wanjiku to vie for the seat while still holding another public office (MCA).
“Even though she had the option to resign, there is no evidence that she did so prior to or after her nomination (by the Jubilee Party). In the circumstances, Ms Wanjiku was as at the date of her nomination still a sitting MCA enjoying attendant monetary and non-monetary benefits,” says Mr Waibara in the court documents.
Citing Article 194 (1) (D) of the Constitution, his lawyer, Mr Jackson Awele, states that the resignation of an MCA must be in writing and addressed to the speaker of the relevant county assembly.
Mr Awele indicated that Ms Wanjiku was under no obligation to complete her term of office as MCA but she chose to finish the term.
“For as long as she continues occupying the position of Member of National Assembly, she perpetuates an illegality that undermines the Constitution and particularly the principle of rule of law, accountability, transparency and integrity of electoral processes,” states the application.
According to Mr Awele, the Constitution expressly disqualifies sitting MCAs from election to Parliament.
“It does so twice at Article 99 (2) (A) and (D) and additionally creates express stand-alone mechanisms for their removal and that can be invoked at any time distinctly from an election petition, brooks no two meanings and should be given the intended effect,” he notes.
Article 99 (2) (D) says a person is disqualified from being elected a Member of Parliament if the person is a member of a county assembly. Sub-section (A) bars a state officer or other public officers from being elected for a parliamentary seat.
“By dint of Article 2, the Constitution is the Supreme Law and any law inconsistent with it is void to the extent of that inconsistency,” states Mr Awele.
Mr Waibara had filed a petition at the High Court contending that Ms Wanjiku’s election was not fair and transparent but the case was dismissed.
It was after the subsequent appeals at the Court of Appeal and the Supreme Court were dismissed that he filed the present application.
Mr Waibara was also directed to pay costs of the petition, an order the lawyer is challenging as he describes it as draconian and sets a bad precedent for public interest litigation.
“The corollary to this is that the learned judge ignored all the weighty constitutional questions posed in the petition in their entirety and thereby occasioned serious miscarriage of justice and prejudice to the public interest,” states Mr Awele.
The parties will appear before the bench on March 2.