The High Court has declined to hear a petition challenging the nomination of Harold Kimuge Kipchumba as an Orange Democratic Movement (ODM) party-list replacement for John Mbadi, instead directing that the matter be handled by a duly constituted election court.
Justice Lawrence Mugambi, in his ruling, noted that any dispute arising from an election whether through universal suffrage or party-list nomination falls under the jurisdiction of an election petition court, as outlined in the Constitution and the Elections Act. He emphasized that only the Chief Justice has the authority to gazette such a court.
“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,” Justice Mugambi stated.
The petition was filed by Mary Arivisa Mwami, who argued that Kipchumba’s nomination was unconstitutional. Mwami contended that the appointment was discriminatory since it resulted in two male representatives for persons with disabilities (PWDs), leaving women unrepresented in that category.
The Independent Electoral and Boundaries Commission (IEBC), however, defended its decision. In a detailed statement, the commission explained that the nomination adhered to the legal provisions under Section 37 of the Elections Act and Regulation 56 of the Elections (General) Regulations, 2012.
According to the IEBC, when a party-list seat becomes vacant, it must be filled by the next qualified nominee as per the order submitted by the political party. In this case, Kipchumba, who is of the same gender as Mbadi, was the next in line on ODM’s list.
“The Commission’s decision in this matter was fully compliant with the constitutional principles and relevant statutory provisions,” the IEBC maintained.
Justice Mugambi further warned that failure to comply with court directives in the matter would result in legal consequences. The case now awaits Chief Justice Martha Koome’s decision on appointing an election petition court to hear and determine the dispute.
