Daniel Munywoki Mwangagi,Ephraim Mwirigi Mbrurugu,Stephen Muchena Kirigia,Ntagangui Douglas M’murithi,Beatrice Mwendwa Kimathi & Geoffrey Mawira Muguongo v Asenath Kaimuri Nyamu,Pary of National unity & Independent Electioral Boundaries Commission (IEBC) [2017] KEHC 3103 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

PETITION NO 20 OF 2017

THE ELECTIONS ACT, 2011

IN THE MATTER OF OF: CONTRAVENTION OF ARTICLES 90 (1) (2), 54 (2), 56 (a) 177 (C), 21 (3) OF THE CONSTITUTION OF KENYA

IN THE MATTER OF:  CONTRAVENTION OF SECTION 34 & 36 OF THE ELECTIONS ACT, 2011

IN THE MATTER OF: THE ELECTIONS (PARLIAMENTARY AND COUNTRY ELECTIONS) PETITION RULES, 2013

IN THE MATTER OF: ALLEGED CONTRAVENTION OF REGULATION 54 (1) AND (3) OF THE ELECTIONS (GENERAL) REGULATIONS 2012

DANIEL MUNYWOKI MWANGAGI..........................1STPETITIONER

EPHRAIM MWIRIGI MBRURUGU..........................2ND PETITIONER

STEPHEN MUCHENA KIRIGIA...............................3RD PETITIONER

NTAGANGUI DOUGLAS M’MURITHI......................4TH PETITIONER

BEATRICE MWENDWA KIMATHI............................5TH PETITONER

GEOFFREY MAWIRA MUGUONGO........................6TH PETITIONER

VERSUS

ASENATH KAIMURI NYAMU...............................1ST RESPONDENT

PARY OF NATIONAL UNITY................................2ND RESPONDENT

INDEPENDENT ELECTIORAL BOUNDARIES

COMMISSION (IEBC) ……..……….............…3RD   RESPONDENT

RULING

1. Before me is an application under Order 40 rules 1, 2, 3, 4 and 15 of the civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Articles 19, 21, 54 and 56 of the Constitution.  The application seeks an ex-parte order of injunction to restrain the 3rd Respondent, the Clerk of Meru County Assembly, from swearing in the 1st Respondent on the 7th September, 2017 as a Member of the Meru County  Assembly.

2. The grounds for the application are contained in the main body of the Motion as well as the Supporting Affidavit of   Daniel Munywoki Mwangangi.  These are that the Applicants are persons living with disability within Meru County; that the 2nd Respondent has been nominated to the Meru County Assembly yet she is not a person living with disability and that the Meru County Assembly will as a result be constituted unconstitutionally as the representation of the persons living with disability will be 0. 68% instead of 5% as required by Article 54 (2) of the Constitution.

3. It is for the foregoing reasons that the Applicants urged through their Learned Counsel Mr. Otieno that a temporary  order of injunction be issued as aforesaid.

4. I have carefully considered the Affidavits on record and the submissions of Counsel. This is a Petition challenging the election or nomination of the 1st Respondent to the Meru Country Assembly as representative of persons with disability under Article 177 (c) of the Constitution.

5. The foregoing being the case, the process of such a challenge is to be mounted in the Election Court  (see the decision of   the Supreme Court in Moses Mwicigi & 14 Others v IEBC& 2 Others (2016) eKLR.  That being the case, the question is whether this Court should stop the swearing in of the 1st Respondent as a Member of the Meru County Assembly at this stage pending the hearing and determination of the Petition.

6. Whilst the Constitution expressly bars a person elected as President in an election from being sworn in as President before a Petition challenging his election is determined, there is no such bar in respect of a Member of the County Assembly. The reason being that public interest requires that the County Assemblies should be left to operate and function normally pending the resolution of any disputes pending on their  membership.

7. In view of the foregoing, I find that no irreversible prejudice  will  be suffered by the Applicants if the orders sought are not granted at this stage ex-parte.  Accordingly, the application is declined.  Let the Motion be served for hearing inter-parties on   a date to be taken at the registry.

It is so ordered.

DATED AND DELIVERED INMERU THIS 6TH DAY OF SEPTEMBER, 2017.

A. MABEYA

JUDGE

06/09/2017