, NAIROBI, Kenya, Mar 13 – A State House official who resigned to contest the Kabete National Assembly seat following George Muchai’s demise has been cleared to do so after Justice Isaac Lenaola pronounced that Section 43 (5) of Elections Act shouldn’t apply in the case of a by-election.
The section requires public officials to have resigned from their offices at least six months prior to contesting an electoral seat.
Lenaola found that to bar Wilson Mburu from contesting because the period between the seat being declared vacant and the by-election was less than six months would violate his constitutionally enshrined right to participate in the political process.
“I find that the petitioner is qualified to run in the by-election,” he adjudged. “Consequently I bar the electoral body from stopping him from vying.”
While clearing Mburu to contest in the by-election, Lenaola explained that the provision couldn’t possibly apply in the case of a by-election as by law it is required to be held within three months of the seat being declared vacant.
Section 43 (5) of the Elections Act states that: “A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election,” and is intended to prevent public officers from abusing their offices to gain unfair advantage over their opponents in an electoral process or to hedge their bets by keeping their public offices as a safety net.
Mburu moved to court on March 3 seeking to stop the by-election on the grounds that it would be prejudicial to him given Section 43 (5) of the Elections Act and given he met all the other requirements to contest for the Kabete seat.
The Kabete seat was declared vacant following Muchai’s murder on February 7 and the by-election set for May 4.
Muchai, his driver and two bodyguards were shot along Kenyatta Avenue in the wee hours of February 7.
On Friday, seven people suspected of the murders were arraigned before the High Court.
The seven are also facing charges for two carjackings orchestrated on the same day the four were killed.