An affidavit by the Registrar of Political Parties could see the Kenya Kwanza Alliance lose its say in the National Assembly to the Azimio la Umoja One Kenya Coalition.

Ann Nderitu, in her reply before Justices Jairus Ngaah, Lawrence Mugambi, and John Chigiti, states that out of the 26 constituent parties forming Azimio, only one had legally exited.

Ms Nderitu was responding to a case filed by Kenneth Njagi and 12 others, who argue that the leadership of the National Assembly should change in favour of the current minority coalition party.

“As of June 2023, the only party that has legally exited the coalition is the Devolution Empowerment Party. All the other parties, as gazetted on April 14, 2022, remain constituent parties of the first interested party (Azimio),” said Nderitu.

At the same time, her response also calls into question the continued leadership of National Assembly Speaker Moses Wetang’ula at the helm of the lower house.

She told the court that she had written to Ford Kenya, requesting the party’s position on whether Wetang’ula was still its leader.

In her letter, Nderitu expressed the view that a public officer should not hold an office in a political party.

“This office has been drawn to the concerns in the public domain, with regard to the Speaker of the National Assembly being the Ford Kenya party leader,” wrote Nderitu.

She stated that the party responded through its lawyers, Millimo, Muthomi, and Company Advocates, indicating that there was no law prohibiting the Speaker from holding a political party office.

She found the explanation satisfactory.

Nevertheless, Njagi’s lawyer, Kibe Mungai, argued that Wetang’ula cannot hold the Speaker’s office while still being a member of Ford Kenya and a principal in the Kenya Kwanza Alliance.

Mungai, who was also representing Lempaa Suyianka, Meshack Suba, Teddy Muturi, Amos Wanjala, Stephen Kihonge, Sophie Dola, Winnie Thuo, Victor Ng’ang’a, Simon Lkoma, Caroline Mogaka, and Francis Kenya, said that the ruling coalition had illegally taken the majority seat through the Speaker’s ruling.

Mungai asserted that Wetang’ula had no powers to decide who was the majority or minority in the National Assembly. Instead, he said, the majority and minority positions were sealed during the elections.

“The National Assembly had already asked the Registrar of Political Parties who was in which party. It was not within the powers of the National Assembly Speaker to alter the gazetted mandate of the people of Kenya,” argued Mungai.

At the same time, Mungai said he believed Wetang’ula was partisan due to his membership in Kenya Kwanza.

He stated that the Independent Electoral and Boundaries Commission had confirmed that Azimio had 171 members while Kenya Kwanza had 165, making it the minority coalition. “The fact that he was a member of Ford Kenya was raised by the Registrar but was not followed. The significant problem is that the Speaker decided that his own political coalition was the majority. This would have been different if the Speaker had been neutral,” argued Mungai.

He explained that there was a coalition agreement in place that, in the first place, made Wetang’ula ineligible to be elected Speaker.

Mungai argued that it is unconstitutional for Wetang’ula, as a principal of Kenya Kwanza, to take a position outside the House, and then return to preside over it. “The constitution requires that if an issue involves you, you cannot be an arbiter.

‘‘The Speaker makes a lot of rulings, and that cannot be done by someone who is not impartial,” he continued.

According to Mungai, Wetang’ula cannot be compared with his predecessor Justin Muturi, as the latter never held any position in the Jubilee government.

“Wetang’ula has been an active political player. This goes against the spirit of multipartism and the independence of Parliament,” Mungai said.

Wetang’ula argued that he had been erroneously joined in the case. He added that the case involved political parties and should have been filed before the Political Parties Disputes Tribunal (PPDT).

He observed that other parties, such as the Kenya Revenue Authority, had been named despite having nothing to do with the political dispute.

The Speaker further argued that the issues raised also touched on the Finance Act, 2023, which was a different matter.

“The case cannot be severed. It is so interwoven, and the only remedy is to strike out the petition. Let them go back to the drawing board, be guided by the law, and pursue the right person they perceive to be wrong,” argued Wetang’ula.

His lawyer, Judy Guserwa, argued that he cannot be pursued in person, either in a civil or criminal court.

Azimio La Umoja and Jubilee, on the other hand, supported the case. Its lawyer, Arnold Oginga, argued that the case should not be struck out.

Oginga asserted that Wetang’ula could be sued in person before any court. According to him, Parliament and its Speaker can be overseen by the courts.

He accused the Speaker, Kenya Kwanza, and the Attorney General of selectively reading the case. According to him, the PPDT has no powers over the Speaker.

“This is the right forum to decide this case, given the polycentricity of this matter,” argued Oginga.

Mungai told the court that the case was filed by Kenyans who are not part of political parties. According to him, the issue of who is the majority party was settled at the ballot.

He said that Wetang’ula was wrong to declare Kenya Kwanza the majority. According to him, Azimio had 172 seats while Kenya Kwanza had 160.

Justices Ngaah, Chigiti, and Mugambi are expected to deliver their verdict in February next year.