Nakuru Town East MP David Gikaria/HANDOUTNakuru Town East MP David Gikaria has challenged the electoral commission’s demand that he pay a Sh2.5 million fine and issue a public apology over alleged voter bribery, saying he will move to the Court of Appeal to stop enforcement of the sanctions.
In a letter dated October 16, Gikaria’s lawyer, Adrian Kamotho, told the Independent Electoral and Boundaries Commission (IEBC) that the legislator intended to appeal both the July 14 determination of the Electoral Code of Conduct Enforcement Committee and the High Court judgment that dismissed his application challenging the sanctions.
The lawyer said a notice of appeal would be lodged within the prescribed period, alongside an urgent application seeking interim orders to protect Gikaria pending determination of the appeal.
“Our client is exercising an undoubted right of appeal and will seek interim protection from the Court of Appeal,” Kamotho wrote in the letter addressed to the secretary of the enforcement committee, Nancy Koros.
The latest development sets the stage for another legal battle over the sanctions arising from complaints about Gikaria’s remarks during campaigns for the July 16 Ol Kalou parliamentary by-election.
On October 8, the High Court in Nairobi dismissed Gikaria’s judicial review application, clearing the way for the commission to pursue enforcement of the committee’s determination.
The court, presided over by Justice W Musyoka, found that the application had not met the threshold for the orders sought and discharged temporary orders issued on July 15 that had suspended enforcement of the sanctions.
IEBC chairperson Erastus Ethekon welcomed the ruling, saying enforcement of the Electoral Code of Conduct was central to the commission’s constitutional and statutory mandate to safeguard electoral integrity.
The commission subsequently directed Gikaria to comply with the committee’s orders, including payment of the fine and issuance of a public apology and retraction.
However, Gikaria’s lawyer argues that the High Court’s dismissal of the judicial review application did not amount to an order compelling his client to pay the fine or apologise.
“With respect, your letter overstates the effect of the judgment,” Kamotho wrote, arguing that the court had only declined to interfere with the administrative decision through judicial review.
He added that the judge had made clear that the proceedings concerned the fairness and propriety of the decision-making process rather than the merits of the committee’s findings.
The lawyer also questioned the legality of the committee’s determination, arguing that Gikaria was sanctioned under provisions of the Electoral Code of Conduct that were not included in the original charge.
According to the letter, the charge dated July 11 alleged breaches of paragraphs 6(a) and 6(l) of the code, but the committee found the legislator culpable under paragraphs 6(h) and 6(i).
“A person cannot lawfully be sanctioned on a charge never put to him,” Kamotho argued, citing constitutional provisions on fair administrative action and the right to a fair hearing.
He said additional grounds of appeal would include the alleged denial of adequate time to respond to evidence and the determination of a case involving the interpretation of Gikaria’s remarks in his absence.
The lawyer further disputed the demand for a public apology, arguing that the committee’s directive required Gikaria to appear at Anniversary Towers at 10 am on July 15, a date that had already passed.
He said the legislator was on certified medical convalescence between July 13 and 16 and maintained that the committee could not revive an expired directive through subsequent correspondence.
The letter also raised concerns over the committee’s referral of the matter to the Director of Public Prosecutions for investigation and possible prosecution.
Kamotho argued that compelling Gikaria to publicly declare that his conduct was wrong could expose him to self-incrimination while the same conduct remained subject to possible criminal proceedings.
On the fine, the lawyer maintained that it was not presently enforceable, arguing that the Elections Act requires a fine imposed under the code to be registered in the High Court before execution.
He questioned whether the Sh2.5 million penalty had been registered and whether the commission had formally determined the amount.
Nevertheless, Kamotho said Gikaria was willing, without admitting liability and without prejudice to his intended appeal, to deposit the amount in an interest-earning joint account or in court pending the outcome of the case.
The lawyer also challenged the committee’s authority to impose further sanctions, including a possible restriction on Gikaria contesting future elections.
He argued that the code’s application to the Ol Kalou by-election ended when the elected MP was sworn in on July 28, and that any additional sanctions would require a fresh process compliant with constitutional safeguards.
Gikaria’s case arose from complaints about remarks he made during the Ol Kalou by-election campaign, including statements about cash handouts and collecting recipients’ national identity card details.
The committee found that the remarks implied financial inducement of voters and imposed sanctions under the Electoral Code of Conduct.
In his letter, Kamotho asked IEBC to undertake not to enforce the sanctions pending the appeal and to provide documents showing the legal basis for the fine, its registration in court and the authority for further enforcement measures.
He warned that the legislator would return to court if enforcement steps were taken before the issues raised in the letter were addressed.
