National Assembly Speaker Justin Muturi is expected to issue writs declaring Ugenya and Embakasi South seats vacant by Friday following the verdict of the Supreme Court nullifying the election of area MPs.
Although Mr Muturi said he is yet to receive the judgments of the Supreme Court invalidating the MPs’ victory in the August 8, 2017 general election, House Clerk Michael Sialai gave an assurance that the seats will be declared vacant by Friday.
“The Speaker will formally announce the seats vacant by Thursday to pave way for the Independent Electoral and Boundaries Commission (IEBC) to prepare for two by-elections,” Mr Sialai said.
On December 21, 2018, the Supreme Court overturned the election of Ugenya MP Christopher Karan as well as that of his Embakasi South colleague Julius Mawathe on grounds that they were not validly elected.
According to the Elections Act, the relevant registrar of the court- in this case that of the Supreme Court — is required to submit the court judgment nullifying the election of an MP to the Speaker.
Although there is no specific timeline upon which the registrar should serve the Speaker of the relevant House, the counsel for the petitioner can still extract the order and serve it without having to wait the attendant formalities.
For his part, the Speaker upon receipt of the judgment shall within 21 days after the court order give notice in writing of the vacancy to the IEBC in line with article 101 (4) of the Constitution.
The IEBC shall then have 90 days from the date of the Speaker’s communication to announce the date of the by- election as well as put the necessary arrangements in place.
Until the Speaker issues the writs declaring the seats vacant or until the 21 days upon which he is required to communicate to the electoral commission are over, Mr Karan and Mr Mawathe will continue discharging their legislative, representation and oversight roles.
Section 16 of the Elections Act provides that a vacancy in the office of an MP shall be deemed to occur on the date of issuance of a notice to the commission from the date of the actual occurrence of the vacancy.
Mr Mawathe moved to the Supreme Court after former MP Irshad Sumra Mohammed successfully challenged his electoral victory at the Court of Appeal.
Initially, High Court judge Grace Nzioka had dismissed Mr Sumra’s petition, forcing him to move to the appellate court.
Former Ugenya MP David Ochieng’ successfully challenged Mr Karan’s election at the High Court on the basis that it was marred by electoral malpractices.
Mr Karan unsuccessfully appealed the decision at the Court of Appeal. He then moved to the apex court, which upheld the rulings of the lower courts.