As a pointer to how slow the wheels of justice grind, a legal battle over the outcome of a constituency election lodged in 2017 is still stuck in court corridors less than a year to the next General Election.
Appellate judges are on the spot over alleged delay to determine an appeal filed by Gatundu North MP Anne Wanjiku Kibe, seeking to quash a High Court ruling that nullified her election.
Former MP Clement Waibara, who challenged Ms Kibe’s election, says the six-month constitutional timeline has since lapsed from the time the appeal was lodged in November last year.
Mr Waibara has consequently filed an application urging the appellate court to dismiss the case and pave way for a by-election on grounds that the case is no longer tenable in view of the statutory timelines.
Pursuant to rule 23 of the Court of Appeal (Election Petition) 2017, the appeal ought to have been heard and determined within six months of the date of the judgment.
Justice Weldon Korir nullified Ms Kibe’s election on October 7 last year following a finding that she was not qualified to vie for the seat.
“The appeal lodged against the High Court’s decision was filed on the November 24, and almost a year down the line, it’s yet to be heard and determined. This application seeks an urgent determination whether the court’s powers on appeals extend beyond the period of six months,” says Mr Waibara.
He was among six other contestants during the August 2017 polls.
According to Articles 101(4) and 101(5) of the constitution, a by-election cannot be held at least six months prior to the General Election. The period left to the 2022 polls is less than 10 months.
Justice Korir found that Ms Kibe had not resigned as a nominated member of the Kiambu County Assembly. Justice Korir also declared the seat vacant and ordered a fresh election.
But Ms Kibe went to the Court of Appeal where she was granted a temporary order barring the Speaker of the National Assembly from giving notice to the Independent Electoral and Boundaries Commission (IEBC) about the vacancy of the seat.
The stay order was to remain in force pending the hearing and determination of the appeal.
Mr Waibara has now questioned the authority of the court to deal with the case outside the statutory timeframe. The case involves a question of whether a person has been validly elected as a Member of Parliament.
He further says the orders of the Court of Appeal suspending the High Court decision have never been extracted contrary to the provisions of the rules of the court.
“In the absence of an order extracted in accordance with the rules of this court and served upon the Speaker of the National Assembly, the speaker remained under a Constitutional obligation to notify the IEBC of the occurrence of a vacancy for the position of the Member of the National Assembly for Gatundu North within 21 days from the date of the Judgment of the High Court,” argues Mr Waibara.
He further argues that the appellate court’s suspension order dated October 28 last year places Ms Kibe in a position to ride out her term as a sitting MP, without the need of ever prosecuting her appeal. The application is awaiting directions on the hearing.