High Court's Order to Tony Gachoka

The High Court has directed that Tony Gachoka, a journalist, deposit Sh500,000 as security in an election suit in which he is contesting the deletion of his name from the list of individuals the Narc Party intended to nominate for the National Assembly.

The decision was made after it was found that the petition was an election dispute covered by the Elections Act's (Parliamentary and County Elections Petition Rules) deadline of six months.

Justice Erick Ogolla has since been chosen by Chief Justice Martha Koome to hear and decide Mr. Gachoka's case. After the Charity Ngilu-led National Rainbow Coalition (Narc) neglected to include Mr. Gachoka on its list of candidates for the National Assembly's seat representing people with disabilities, hence Mr. Gachoka filed a lawsuit.

He claims that as a person with a disability, the party affiliated with the Azimio la Umoja Coalition had promised to place him at the top of its nomination list. However, his name was absent from the list provided to the Independent Electoral and Boundaries Commission (IEBC).

The petition read,

“Under Article 97 Constitution, political parties in Kenya are obligated to nominate persons to the National Assembly to represent special interests of a category of citizens including persons living with disabilities, The petitioner being a person living with disability is the best suited for nomination under that category to represent the Azimio Coalition in the National Assembly,” 

He claims that there was a malicious intent to shut him out of the party list and that the decision amounts to condemning him unheard and breach of his legitimate expectations.

Mr Gachoka wants court to declare that Narc’s decision to omit his name from the party list submitted to the IEBC was illegal, irregular, null and void. He also wants the list quashed.

He argues that Narc officials omitted his name from the list of nominees presented to the IEBC, “despite him having qualified to be in the list and despite him having no affiliation to any other political party in Kenya”.

“The affiliate parties of Azimio have individually nominated persons to the National Assembly under the guise of Article 97 of the Constitution where in fact the respective nominations have been undertaken to award the political cronies of the said affiliate parties. This action or conduct of the affiliate parties of Azimio is ultra vires the provisions of the Constitution 2010,” says Mr Gachoka.

The journalist continues that none of the Azimio Coalition affiliate parties nominated a person with a disability to the National Assembly, "which is absolute contravention of the provisions of Article 97 of the Constitution and therefore the said nominations are null and void" from the getgo, that according Miller & Company Advocates. Additionally, he requests that the court order Narc to provide an updated list to the IEBC that includes him as the initial candidate to represent people with disabilities. He claims he had a right to expect to be at the top of the nomination list because he is a disabled person.

In his declaration, Mr. Gachoka claims that up until June 22, 2022, when he quit and joined NARC, the political party headed by the former Kitui governor Charity Ngilu, he was a life member of the Orange Democratic Movement (ODM), which is led by the former prime minister Raila Odinga.

“For reasons beyond my control and which have never been disclosed to me, the Narc party officials willfully refused to update my name in the party register. It is the political party that updates its list of members and not an individual and therefore my hands were tied upon submission of my application to join the party,” says Mr Gachoka.