The Nyeri High Court has temporarily stopped the replacement of two MCAs whose nominations were revoked by a Magistrate’s court.
Justice Florence Muchemi set aside orders nullifying the election and swearing-in of the two gender MCAs- Fidelis Nderitu and Janet Muthoni, pending the determination of the appeal lodged by the two.
“So as to effect these orders, the status quo before the lower court’s judgement is to be maintained in respect to the appellants’ status as MCAs together with their privileges, emoluments and entitlements pending the hearing of this suit,” said the judge.
She directed the respondents in the matter — Ms Margaret Njeri — a resident who challenged the nominations, the Independent Electoral and Boundaries Commission (IEBC), the United Democratic Alliance (UDA) party and the County Assembly of Nyeri to reply to the suit within a week of being served.
In the suit, the appellants through lawyer Kamotho Njomo, say they are dissatisfied with how the court handled the petition, noting that it did not consider its response to the matter before making its decision.
In the judgement issued by Senior Principal Magistrate Mathias Okuche, the court found the nominations unlawful, while faulting the IEBC for breaching its own rules during the nomination process.
While issuing the decision, Mr Okuche said Ms Njeri was one of the people who submitted her application for nomination in the Gender-Top Up Category.
“She was selected as part of the nominees of the UDA party, listed as number seven, in a list published in a local newspaper on July 27, 2022,” said the magistrate.
But the IEBC asked the UDA party to amend its party list, saying that it was non-compliant with its laws.
Electoral agency
Mr Okuche noted that the political party amended its list and resubmitted it to the electoral agency.
“It was then that the petitioner came across the re-submitted list on August 30, last year and realised that she was no longer part of the nominees,” said the magistrate.
The petitioner moved to the UDA party’s Dispute Resolution Committee, which in its orders, directed that Ms Njeri be returned to the list at position seven.
In effect to the committee’s decision, the UDA Party amended the list and forwarded it to the electoral agency.
“But during gazettement, IEBC omitted her name and instead replaced her with the new already sworn-in MCAs – Ms Wangui and Muthoni,” said Mr Okuche.
According to Mr Okuche, IEBC in the suit did not deny receiving the ruling delivered by the UDA party Dispute Resolution Committee.
“This was a blatant act in the face of justice and in approach to the petitioner’s political rights,” ruled the magistrate.
The electoral agency had told the court that it did not follow the orders by UDA’s Resolution Committee because the petitioner was among the nominees listed in Murang’a County.
But Mr Okuche found that the mistake was further rectified by a ruling issued by the political party’s resolution committee.
The IEBC in its defence had also told the court that when it received the first list, it rejected the name of the petitioner.
But Mr Okuche ruled that despite this, the electoral agency failed to inform the petitioner of the reasons it rejected her nomination, an action that was contrary to election laws.
“It can, therefore, not be said that the subsequent election of the new MCAs in this suit, was fair and lawful in the circumstances. It was want of due process and substance,” said the magistrate.
In its orders, the magistrate court had ordered the clerk of the county assembly to instead swear in the petitioner within 14 days.
