Senator dealt blow in bid to stop petition

Tuesday, November 24th, 2020 00:00 |
Kirinyaga Senator Charles Kibiru at a past function. Photo/PD/File

Kirinyaga Senator Charles Kibiru has suffered a major blow, after losing a bid to stop a petition seeking to declare his seat vacant, for engaging in Jubilee affairs yet he is not a member of the party.

Kibiru wanted the petition filed by political activist Josiah Murigu and 30 voters, declared incompetent on grounds that it was filed in a court which has no powers to hear and determine issues raised.

In his  objection, the senator argued that the petition should be heard and determined by en election court under the Election Act, 2011, not the constitutional court.

He was of the view that the orders sought in the petition including a declaration that “office of the MP for Kirinyaga county in Senate” has become vacant, can only be issued by an election court.

But the court ruled that the case was properly filed at the constitutional court as it has jurisdiction to hear such petitions seeking declarations that a seat of a Member of Parliament has become vacant.    

“I find that the preliminary objection by Kibiru has no merit and is dismissed with costs,” ruled Justice Lucy Gitari.

She added 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 election petition has lapsed, the petitioners have no lee way to challenge the membership of their MPs,” said the judge.

The judge added that the petition lodged by the 31 voters is not questioning the validity of an election but is concerned with determination of whether the Kirinyaga senatorial  seat has become vacant, an issue that has no time lines.

“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 ruled.

The petitioners moved to court on May 28, following claims that Kibiru was one of the senators who attended a Jubilee meeting hosted by President Uhuru Kenyatta earlier in May. 

The meeting resolved to replace Elgeyo Marakwet Senator Kipchumba Murkomen and Nakuru Senator Susan Kihika as the Majority Leader and Majority Whip. 

According to the petitioners, Kibiru having been elected as an independent candidate is not supposed to participate in political parties affairs.

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