Intrigues as legal battle looms over UDA candidate's eligibility in Malava by-election

As campaigns for the Malava parliamentary by-election gather momentum ahead of the November 27, 2025 poll, a fierce legal and political storm is brewing over the eligibility of United Democratic Alliance (UDA) candidate David Ndakwa, who is still serving as the Member of County Assembly (MCA) for West Kabras Ward in Kakamega County.

Several leaders have criticised Ndakwa for failing to resign from his current position before vying for the parliamentary seat, while others have defended him, stating that he doesn't need to resign and that ward representatives are state officers.

However, the debate has also narrowed down to legal experts with divergent legal opinions who have warned that the situation could lead to legal battles if he wins or loses in the November 27 by-election.

The contest, triggered by the death of former Malava MP Malulu Injendi,  has not only attracted political significance in the Western region and national level but also on the eligibility of the UDA candidate, with his opponents plotting to file a legal suit to bar him from vying.

The Kakamega County Assembly Speaker, James Namatsi, has defended Ndakwa, stating that no law compels a sitting MCA to resign before contesting for another elective position.

"MCAs are state officers, and if you look at section 43, it obligates public officers to resign but not state officers," said Namatasi.

Namatsi argued that the Independent and Electoral Boundaries Commission (IEBC) has announced itself on the matter through an advisory note and cleared Ndakwa to run.

Namatsi further stated that the UDA candidate has not tabled any resignation letter to his desk, adding that he is bound to do so after clinching the parliamentary seat.

 The speaker added that he will declare the ward seat vacant, and if he fails, he is allowed to come back to the county assembly to represent his people.

"I have not received any resignation letter from Ndakwa, and this was after the IEBC advised that he does not need to resign, and therefore I am waiting for his resignation letter if he wins the parliamentary seat and gets sworn in as the new MP so that I can declare the seat vacant for another by-election," said Namatsi.

He added, "If Ndakwa fails to win the MP seat, he is free to walk back to the county assembly and continue representing his people."

The Standard was able to access an advisory from the IEBC, signed by its CEO, Marjan Hussein Marjan, on August 19, 2025, which advised Ndakwa to contest for the parliamentary seat without resigning as a sitting MCA.

Ndakwa had sought advice on whether a sitting MCA needs to resign within seven days of the declaration of a vacancy, as other public officers do to participate in the by-election. Our response is as follows.

"Section 43(6) of the Elections Act precludes the President, the Deputy President, a Member of Parliament, a County Giovernor, a Deputy Governor and a Mmember of County Assembly from the provision of section 43(5A) which stipulates that a public officer who intends to contest in a by-electionunder the Election Act must resign from the public officewithin the seven days of the declaration of a vacancy. This therefore means under the Elections Act, a serving MCA need not resign from public office within 7 days of the declaration of a vacancy. Be guided accordingly," reads the IEBC advisory.

However, several lawyers have opined that it is unlawful for a sitting MCA to contest for an elective seat without first resigning.

Innocent Ondieki, the Chairperson of the Law Society of Kenya (LSK) in Kakamega County, insists that it is unlawful for a sitting ward representative to contest for a parliamentary seat without first resigning, arguing that it contravenes Article 99(D), which requires an MCA to resign before contesting for the elective seat.

“It is against the law for a sitting ward representative to vie for a parliamentary seat without resigning. The law is clear that a public officer seeking another elective post must vacate their current office,” he said.

He cited the case of Kirimenti Kungu v. Anne Wanjiku, determined by Justice Weldon Kipkorir, where Wanjiku lost her seat after contesting another elective position while still in office.

“The court in that case ruled that one cannot serve two masters at the same time. That precedent is still binding,” Ondieki added.

Lawyer and political analyst Ken Echesa also warned that the issue could escalate into a major legal battle after the election, regardless of the outcome, faulting IEBC for misadvising the UDA candidate without following the provisions of the Election Act despite the court rulling.

 “There will likely be legal battles whether Ndakwa wins or loses. Legally, he should have resigned at least seven days before his nomination by the party,” said Echesa.

He argued that the Elections Act requires public officers seeking elective positions to resign at least seven days before nomination, adding that Ndakwa’s nomination by UDA while still holding the MCA position could be grounds for disqualification.

“Ignoring that procedure opens the door for litigation and may jeopardise the legitimacy of the election outcome,” he said.

In one of the rallies, Kakamega Senator Boni Khalwale, who is supporting a DAP-K Candidate, Seth Panyako, said that he had plans of blocking Ndakwa's candidature because he is still allegedly earning a salary.

"I was planning to block Ndakwa from vying for this seat because he is still earning a salary, but I have decided to forgive him for the sake of the region's unity. However, let him try his luck, but he won't succeed, and it is not too late for him to lose his seat," said Khalwale.

Ndakwa, in one of the rallies, dismissed the criticism as politically motivated, saying his opponents were afraid of his influence and trying to derail his campaign through propaganda.

“The people of Malava know who I am and what I stand for. These distractions won’t stop us from moving forward,” he said.

UDA is banking on Ndakwa to deliver its first parliamentary seat in the constituency, riding on the party’s recent inroads in Western, but it is facing high resistance from the opposition, which enjoys massive support from the area.