Nakuru Town East Member of Parliament David Gikaria will move to the Court of Appeal to challenge sanctions imposed by the Independent Electoral and Boundaries Commission (IEBC) Electoral Code of Conduct Enforcement Committee, his lawyers have announced.
Adrian Kamotho Njenga & Co. Advocates said the legislator intends to appeal both the committee’s July 14 determination and the High Court judgment delivered on October 8, which dismissed his application challenging the decision.
The legal team said it would file an urgent application seeking interim orders to prevent enforcement of the sanctions pending the determination of the appeal, arguing that implementing the penalties before the case is heard could undermine Gikaria’s right to a fair hearing.
“Our client is exercising an undoubted right of appeal and will seek interim protection from the Court of Appeal,” the lawyers stated.
The dispute follows a July 14 decision by the IEBC Electoral Code of Conduct Enforcement Committee, which fined Gikaria Sh2.5 million, ordered him to issue a public apology and retract his remarks, and warned him against further breaches of the electoral code.
The sanctions arose from remarks made during campaigns for the Ol Kalou parliamentary by-election. The committee found that his conduct breached provisions of the Electoral Code of Conduct relating to alleged financial inducements to voters and statements concerning voting requirements.
Gikaria subsequently moved to the High Court seeking to challenge the committee’s proceedings and determination. However, on October 8, Justice W. Musyoka dismissed his judicial review application, finding that it had not met the threshold for the orders sought. The court also discharged temporary orders issued on July 15 that had halted enforcement of the sanctions.
In their latest correspondence, Gikaria’s lawyers dispute the interpretation of the High Court judgment, arguing that dismissing the judicial review application did not amount to a direct order requiring their client to pay the fine or issue the apology.
They have also questioned the committee’s finding that Gikaria breached provisions of the electoral code under which, according to the lawyers, he had not been charged. They argue that the issue raises constitutional concerns about his right to a fair hearing.
On the public apology, the legal team maintains that the original deadline of July 15 has expired and that the committee cannot revive the directive through subsequent correspondence. The lawyers also say their client is undergoing medically certified convalescence during the period in which he is required to appear before the committee.
Regarding the Sh2.5 million penalty, the advocates contend that the fine cannot be enforced until it is registered in the High Court as required under the Elections Act.
Nevertheless, they have indicated that Gikaria is willing to deposit the amount in an interest-earning joint account or into court pending the appeal. The lawyers say such a deposit would not constitute an admission of liability.
The legal team has further objected to the possibility of additional sanctions, including a restriction preventing Gikaria from contesting future elections, arguing that the committee cannot introduce further restrictions on his constitutional political rights without proper legal authority.
The lawyers have asked the committee to undertake not to enforce the sanctions while the appeal is pending. They have also demanded documentation showing whether the fine has been registered, the authority supporting the amount imposed and the legal basis for any additional enforcement measures.
“Should any enforcement step be taken before the foregoing requests are addressed, we hold firm instructions to move the Court without further reference to you,” the lawyers warned.
The committee had also referred evidence from the proceedings to the Director of Public Prosecutions (DPP) for investigation into possible electoral offences.
Gikaria’s lawyers maintain that the referral does not, by itself, create an obligation for their client to comply with the committee’s sanctions.
The planned appeal introduces another legal challenge to the enforcement of the penalties following the High Court’s dismissal of the MP’s initial application.
