Kibeh v Waibara & another
The bottom line
#Kenya's Court of Appeal confirmed that MCAs can run for Parliament without resigning, because disqualification only applies at election, not nomination.
What this practically means
#Executive summary
#Key legal issues
#Whether a member of a county assembly is a state officer for purposes of article 99
A member of a county assembly holds a state office and is therefore a state officer under article 260 of the Constitution.
The court relied on article 260, which defines a state officer as a person holding a state office and expressly lists a member of a county assembly as a state office. It fortified this with the Supreme Court's definition of public officer in Outa v Okello, which ties the electoral-law meaning of public officer to article 260 read with section 2 of the Elections Act.
Whether nomination is an election within article 99
Nomination is not an election within the meaning of article 99; the High Court conflated the two stages.
Article 99(2) disqualifies a person from being elected, not nominated. The disqualifications must be present at the time of election, which is a stage after nomination. The High Court erred by reading 'nomination' into article 99(2) and by treating clearance by IEBC as part of the election itself, contrary to section 22(1) of the Elections Act which governs nomination.
Consistency of section 43 of the Elections Act with article 99
There is no inconsistency; section 43(6) exempts members of county assemblies from the resignation requirement, and their terms end automatically at the general election.
Section 43(6)(g) exempts members of county assemblies from resigning six months before an election. Such members automatically cease to hold office by the election date when their term ends, so the article 99(2) disqualification is not applicable on the election date. The rationale is that elective positions are political and their five-year terms terminate at the next general election, avoiding vacancies and by-elections.
Determination of unpleaded issues
The High Court erred in making sweeping pronouncements on matters not pleaded, such as eligibility to contest presidential or county assembly elections.
Relying on Galaxy Paints v Falcon Guards, the court held that litigation is circumscribed by the pleadings. The only issue before the High Court was the qualification of a member of a county assembly for election as a member of Parliament; pronouncements on other office-holders transcended the parties and should not have been made.
Eligibility of the appellant at the date of election
At the time of the 2017 election the appellant was no longer a member of the county assembly, her term having ended, so the disqualification did not apply.
Although the appellant was a member of Kiambu County Assembly at nomination and gazettement, her term ended automatically with the term of the county assembly at the general election. The article 99(2)(a) and (d) disqualifications would only have applied had she still been a member on the election date.
Legal principles established
#- Article 99(2) disqualifications relate to election as a member of Parliament, not to nomination; qualifications must be present at the time of election.
- Nomination and election are two distinct stages in the electoral process that cannot be conflated.
- A member of a county assembly is not prohibited by law from being nominated to vie for a parliamentary seat.
- Section 43 of the Elections Act is not inconsistent with article 99 of the Constitution; officers exempted under section 43(6) need not resign before elections.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the High Court and all orders made thereunder set aside
- 3.Substituted an order dismissing Hon Waibara's petition
- 4.Costs in the High Court and this court awarded to the appellant and the 2nd respondent
- On appeal from
- High Court of Kenya at Nairobi
- HC Milimani Constitutional Petition No. 210 of 2020 (Formerly Kiambu HC Petition No. 8B of 2019)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and applicable appellate law (constitutional petition decided by the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibeh v Waibara & another", Case Analysis (2022). Civil Appeal E468 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.