Kenya’s constitutional and electoral framework is no stranger to controversies over eligibility of public officers seeking elective office.

But recent jurisprudence, statutory mandates, and the simple fact of elapsed deadlines now make some candidacies legally indefensible.

Among those in the eye of this legal storm are Seth Panyako, a sitting board member of the Local Authorities Pension Fund (LAPFUND); MCA David Ndakwa; and other contestants aiming for the Malava parliamentary by-election.

The issue: a rigid, mandatory deadline for public officers to resign from office after a parliamentary seat becomes vacant—one that has now passed.

And once that deadline is missed, the law leaves no space for “wait and see” politics or legal manoeuvres; the only path consistent with law is voluntary withdrawal (or resignation) or facing ineligibility and litigation.

What the Law Requires

Elections Act, No. 24 of 2011 — Section 43 & Section 43(5A)

Constitution of Kenya — Article 260 & Other Relevant Provisions

Supreme Court Ruling — NHIF Case (Petition E024 of 2024)

The Deadline Has Lapsed

In past by-elections, and in notices published by IEBC/Gazette, there has been a consistent requirement: a public officer wishing to contest must resign within seven days of the vacancy being declared by the Speaker of the National Assembly.

This was the case, for example, in the 2021 by-elections for Kiambaa Constituency and Muguga Ward (Kiambu), where the Gazette notice explicitly stated the seven-day deadline.

The law is unambiguous: once that seven-day window closes, the disqualification is effective. A public officer who has not resigned by that time becomes ineligible to be nominated or to present nomination papers for that by-election.

Where They Stand

Seth Panyako

MCA David Ndakwa & Others

Public Officer by Parity of Reasoning

The Supreme Court in the NHIF decision leaned heavily on parity of reasoning — meaning if one body meets the criteria (statutory creation, handling of public funds, subject to audit, oversight by government), then others with similar factual circumstances must be treated the same.

Board members of LAPFUND, just as those of NHIF, are subject to these same criteria:• Statutory basis• Public funding / public functions• Audit by Auditor-General or regulated financial oversight• Appointment under statute

Thus, any attempt by Mr. Panyako (or similarly situated persons) to argue that their office is different or not covered is directly undercut by the Supreme Court ruling.

The legal record is clear: the deadline has closed, the law is mandatory, and precedents are binding. The only way forward for someone in Mr. Panyako’s position is to acknowledge ineligibility or voluntarily step aside.

Legal challenges will be filed; courts will almost certainly rule against any nomination submitted after the deadline and without the required resignation.

What IEBC and the Courts Should Do

Kenya’s democracy depends on equality before the law. The Supreme Court, Parliament, and IEBC have established legal guardrails meant to ensure public officers serve without misusing their positions for electoral gain.

The deadline for public officers to resign after a parliamentary seat becomes vacant has passed. For Seth Panyako, MCA David Ndakwa, and any other candidate who did not vacate public office in that window: the law is very clear — they are ineligible.

Any attempt to treat the law as optional or to argue late compliance is inconsistent with Supreme Court precedent, constitutional mandate, and the Elections Act. Kenyan democracy deserves better than ambiguity.

If Mr. Panyako values the rule of law, the integrity of the electoral process, and his own reputation — he should do the honourable thing: step aside, and allow eligible candidates to contest in a contest that is beyond reproach.

The views and opinions expressed in this article are solely of the writer and do not represent the position of Mulembe News.