Kirinyaga Senator Charles Kibiru has suffered a major set back in his bid to stop the High Court from hearing a petition seeking to declare his seat vacant for participating in Jubilee party affairs yet he was elected on an independent ticket.
The lawmaker wanted the petition filed by 31 voters thrown out on grounds that it was filed in a court without jurisdiction to determine voters’ issues.
He wanted the petition to be heard and determined by Election Court under the Elections Act, 2011.
But Justice Lucy Gitari ruled that the case was properly filed at the Constitutional Court adding that the court has jurisdiction to hear the matter.
The judge noted that that Article 105 (1) (b) of the Constitution gives the High Court a special jurisdiction which can be invoked at any time during the life of Parliament.
“The contention that the petitioners can only come to this court by way of an election petition misses the point. The Constitution has not provided that once a person has been elected and the time for filing the petition has lapsed, the petitioners have no leeway to challenge the membership of their MPs,” said Justice Gitari.
Justice Gitari further noted that the petition is not challenging the lawmaker’s victory but seeks the court’s determination whether the Kirinyaga senatorial seat has become vacant, an issue that has no timelines.
“The petition on membership of Parliament can be filed at any time as provided under Section 76(1) (c) of the Elections Act (Supra),” the judge said.
The voters led by political activist Josiah Murigu moved to court after the senator participated in a Jubilee Senate Parliamentary Group meeting and voted to change the party leadership in the Senate.
In the meeting held on May 11 at State House in Nairobi and chaired President Uhuru Kenyatta, Senators Kipchumba Murkomen (Elgeyo Marakwet) and Susan Kihika (Nakuru) were stripped of their majority leader and chief whip roles respectively.
The petitioners argue that that the senator violated Article 103 (1) of the constitution that stipulates the grounds under which the office of a member of parliament can become vacant.
According to the voters, the senator’s action meant that he had joined the Jubilee Party/Jubilee Coalition.
They want the Senator to be removed from office based on Article 103 (1) (e) (ii) of the Constitution which stipulates that the “office of a Member of Parliament becomes vacant if, having been elected to Parliament — as an independent candidate, the member joins a political party.”