Relief for Malava MP as court dismisses petition

David Ndakwa receives his certificate from an IEBC Returning Officer after winning the Malava MP seat. [Benard Lusigi, Standard]

Malava MP David Ndakwa has secured a major legal victory after the Kakamega High Court dismissed a petition challenging his election in the recent by-election.

Justice Stephen Mbugi ruled that the petition filed by Ndakwa’s rival, Seth Panyako, lacked merit, effectively affirming Ndakwa as the duly elected Member of Parliament for Malava Constituency.

The judge held that the petitioner had failed to provide sufficient evidence to warrant nullification of the election results declared by the Independent Electoral and Boundaries Commission (IEBC).

Justice Mbugi also dismissed claims that Ndakwa unlawfully contested the parliamentary seat while serving as a Member of County Assembly (MCA).

In his judgment, the judge observed that Section 43(6) of the Elections Act does not expressly require an MCA to resign before vying for another elective seat in a by-election, unlike provisions applicable during a general election.

“The law does not provide for automatic vacation of office. In my opinion, if Parliament intended that an MCA seeking election as MP should first resign, it would have stated so expressly,” ruled Justice Mbugi.

The court consequently dismissed the petition and upheld Ndakwa’s victory.

The petition had revisited claims of voter bribery, violence, intimidation and alleged involvement of public officials in the highly contested by-election.

During submissions, counsel for the petitioner Nelson Havi argued that the integrity of the election had been compromised beyond repair.

He referred to video footage allegedly showing Higher Education Principal Secretary Beatrice Inyangala distributing relief food while invoking Ndakwa’s candidacy, arguing that the conduct amounted to unlawful participation of state officers in politics.

The petitioner also alleged widespread violence during the election period.

However, the defence team led by lawyer Hezron Abok dismissed the petition as defective and unsupported by credible evidence.

Abok argued that parts of the petition relied on repealed laws and questioned the validity of some affidavits presented before the court.

He maintained that no direct link had been established between Ndakwa and the alleged acts of violence.