Supreme Court upholds Kingi's election as Senate Speaker

The Supreme Court has dismissed a petition to annul the election of  Amason Kingi as Speaker of the Senate.

The Apex court held that due process was adhered to in the election and appointment of Kingi as the Speaker of the Senate.

Isaac Aluochier had petitioned the court against Kingi's election, saying he did not meet the qualifications to be sworn in as speaker of the senate.

On September 8, 2022, Kingi secured 46 votes, which was the majority vote, and was declared elected as Speaker of the Senate, subsequently being sworn into office.

Aluochier had asked the Apex court to quash the nomination of Kingi, Kalonzo Musyoka, George Bush, Beatrice Kathomi, Frederick Muchiri, and George Njoroge, whose names were shortlisted as candidates for the contest of Speaker of the Senate.

He said that Kingi and other candidates did not fulfil the eligibility requirements under Article 99(1) as read together with Article 85 of the Constitution and Sections 13(1), 22(1)(a) and 24(1) of the Elections Act.

Aluochier told Justices Martha Koome, Philomena Mwilu, Njoki Ndung’u, Smokin Wanjala, Issac Lenaola, and Willis Odhiambo that out of the seven candidates, he was the only one who, in law, had been duly nominated as a candidate for the office of Speaker of the Senate.

Accordingly, he said that by declaring Kingi, and not him, as duly elected, the Clerk of the Senate, Jeremiah Nyegenye, acted in contravention of the Constitution and the law.

Justice Koome said Alouchier did not utilise available remedies to obtain the eligibility information of the other six candidates prior to submitting his case in the High Court.

“The upshot of our above finding is that the courts below us were correct in their assessment that the appellant (Alouchier) had failed to prove his case as regards this ground on a balance of probabilities, and we have no hesitation in finding that due procedure in the election of the 3rd respondent (Kingi) as the Speaker of the Senate was adhered to in line with Article 99 as read with Article 106 of the Constitution,” said Justice Koome.

In his petition dated October 30, 2022, before Justice Mugure Thande, Aluochier applied to be sworn in as soon as practically possible as the Speaker of the Senate, being the Speaker-elect following the expiry of the nominations at 2.30pm on September 7, 2022.

Aluochier sought a compensation equivalent to the remuneration he would have earned in office as Speaker of the Senate, commencing the first sitting of the Senate on September 8, 2022.

He said that pursuant to the Senate Standing Order No. 11, being the sole duly nominated candidate at the close of the nominations, he ought to have been declared duly elected Speaker of the Senate.

Oluochier said his fundamental rights and freedoms were violated under Articles 38(3)(c), 47(1) and (2), and 106(1) of the Constitution.

Further, he said, that Sections 4(1), (2), (3), and (4) and 6(1) and (3) of the Fair Administrative Actions Act were violated by the Senate.

He said the unlawful actions of Nyegenye occasioned a constitutional tragedy, remediable only by the court invalidating the nomination and election of Kingi and substituting him as the speaker of the Senate.

Aluochier said that, pursuant to Article 226(5) of the Constitution, the clerk of the Senate was liable for the loss of all the public funds paid as remuneration to Kingi, whom he described as illegally occupying the office of Speaker of the Senate.

Further, he said, the nomination results released at 6:00 pm on September 7, 2022, left him with insufficient time to lodge and have a dispute determined by the IEBC on the same day.

He said that on September 28, 2022, he wrote to the Senate seeking information on the eligibility of the candidates and nomination process with the intention of moving to court to safeguard his political rights.

However, after 30 days, he had received no response, contrary to Section 6(3) of the Fair Administrative Actions Act.

In the High Court, Justice Mugure Thande ruled that the qualifications for a speaker include being a registered voter, meeting educational, ethical, and moral requirements, and nomination by a political party.

Justice Thande further said that if running independently, one must have the support of at least 2,000 registered voters.

Justice Thande ruled that Alouchier received no votes in the election and therefore could not have been said to have been validly elected.

Accordingly, the court noted that Kingi received all 46 votes cast, while Alouchier and the other candidates received no votes.

“In this case, the appellant (Alouchier) was allowed to run and participate in the election under Article 38 of the Constitution, but did not win. Having received no votes, therefore, he had no right to be declared the winner or to hold the office,” said Justice Thande.