, NAIROBI, Kenya, Feb 7 – An aspiring candidate for the Magarini Constituency parliamentary seat, Franco Esposito, has lost a petition filed against the Independent Electoral and Boundaries Commission (IEBC) for locking him out of the March 4 contest.
Although Esposito had been nominated by Narc-Kenya to vie for the seat, the IEBC refused to clear him on grounds that he had not been a Kenyan citizen for the last 10 years preceding the general election.
Esposito argued that the electoral commission erred by locking him out of the ballot without allowing him to exhaust all the mechanisms available to him, as laid out in Article 99 (3) of the Constitution.
The three-Judge bench of David Majanja, George Odunga and Eric Ogola however dismissed the application arguing that Esposito’s argument was not sufficient to sustain the appeal.
“We find and hold that the provisions of Article 99(3) apply only to proceedings contemplated under Article 99(2) (g) and (h). In the circumstances, the petition must fail and it is dismissed. We make no order as to costs,” they said on Thursday.
The judges also noted that the reasons given by the IEBC in refusing to clear him were valid and were laid out in the law.
“An examination of the judgment in Petition No. 78 of 2012 shows that the petitioner was not disqualified by virtue of the judgment but rather the decision was merely declarative of the law. His status was clear and fell within Article 99 (2) (c),” they said in their ruling.
IEBC had through its lawyer Donald Kipkorir defended its action saying they had complied with the provisions of the law.
Last year Esposito asked the High Court to declare that Article 99 (2) (c) should only affect people who become Kenyan citizens after the promulgation of the Constitution.
He also wanted the court to declare that he could vie for the seat because he obtained his citizenship before the effective date of the Constitution.
He further asked the bench to declare Article 99 (2) (c) unconstitutional but on January 11, Justice Isaac Lenaola dismissed all his requests arguing that the law was clear.