Court declines to set aside order barring Karen MCA David Mberia from holding office

A three-judge bench ruled that the application lacks merit and dismissed it.

“Another problematic aspect of the application, is that the applicant is primarily requesting this Court to issue an interim relief under rule 5(2) (b) pending, not the hearing and determination of his intended appeal to this Court, but rather, pending the hearing and determination of Criminal Appeal No. E005 of 2021 which is currently pending before the High Court,” the court noted.

The court noted that there's a pending appeal before the High Court that the applicant declined to prosecute the appeal in the High Court.

In 2021, Mberia was convicted on three counts of soliciting for a bribe and receiving treated money from the EACC.

He argued that section 18(8) of the Bribery Act was inconsistent with Article 194 of the Constitution which provided exhaustive grounds for the vacation of the office of Member of the County Assembly.

Mberia submitted that his intended appeal has overwhelming chances of success because the sentence of lustration was imposed in violation of Article 193(3) of the Constitution, as he had not exhausted his right of appeal.

The state however opposed the application arguing that the High Court had not made any order capable of being stayed by the Court of appeal.

The respondent further submitted that the application was an abuse of the process of the court because the applicant had deliberately refused to prosecute his appeal which was ready for hearing in the High Court. 

It was the respondent’s further submission that the applicant had failed to show that his appeal had overwhelming chances of success.