The High Court has declined to hear a petition that sought to overturn the nomination of Harold Kimuge Kipchumba to the National Assembly by the Orange Democratic Movement (ODM) party, replacing Treasury Cabinet Secretary John Mbadi.
Justice Lawrence Mugambi instead directed that the case be referred to Chief Justice Martha Koome. The Chief Justice will be responsible for gazetting an election petition court to hear and determine the dispute.
“I thus decline to give any directions in the circumstances; I instead direct that the Deputy Registrar immediately transmit this file to the honourable Chief Justice for purposes of gazetting the Election Court pursuant to the procedure set out in the Election Act and the Rules to hear and determine this dispute,” Justice Mugambi stated in his ruling,.
Justice Mugambi also explained that any dispute over an election, whether through universal suffrage or a party list nomination, must be determined by a specific election court, as defined by the Constitution and the Elections Act.
He further clarified that under the Parliamentary Election Petition Rules, 2017, the Chief Justice is required to officially name a specific judge to hear an election petition.
Justice Mugambi also warned that any failure to obey the court orders will result in legal consequences for the involved parties.
Mary Arivisa Mwami, the petitioner, had moved to court to challenge Kipchumba's nomination, stating that it was unconstitutional.
According to the petitioner, Kipchumba's nomination was illegal since there were two males representing people with disabilities(PWDs), while women had no one representing them.
The Independent Electoral and Boundaries Commission( IEBC ), however, defended Kipchumba's nomination
IEBC stated the claims about how it arrived at Kipchumba as the nominee were inaccurate, and offered a detailed clarification on the matter.
The commission noted that Section 37 of the Elections Act and Regulation 56 of the Elections (General) Regulations, 2012, stipulate that when a party list seat falls vacant, it shall be reallocated to the next qualified nominee.
“In this case, the nominee who qualified under the law was Mr. Harold Kimuge Kipchumba, who is of the same gender as Hon. Mbadi and was the next in line on the submitted list,” the statement read.
It added that Kipchumba’s nomination was in line with the legal framework, which prioritises the order and gender in the party list.
“The Commission’s decision in this matter was fully compliant with the constitutional principles and relevant statutory provisions,” the statement went on.
