BRIAN SEGO: The deadline has elapsed: Panyako, Ndakwa and the law, leave no room for evasion

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)

• Section 43 of the Elections Act sets out disqualifications for nominations. One key disqualification is being a public officer who has not vacated office in accordance with the Act. (The Act ties eligibility to resignation/vacation of public office for certain categories of public officers.)
• Among its provisions cited in practice is Section 43(5A), which states that a public officer who intends to contest in a by-election must resign from public office within seven (7) days after the Speaker declares the seat vacant. This requirement is mandatory and non-derogable. The purpose is to ensure fairness, prevent misuse of public resources, and preserve neutrality of public officials.

Constitution of Kenya — Article 260 & Other Relevant Provisions

• Article 260 defines public officer and public office. Any person holding office in national or county government, or a statutory body, whose remuneration or benefits are payable out of the Consolidated Fund or other public monies, is a public officer. This includes board members of state corporations, parastatals, etc.
• The Constitution also enshrines principles of integrity, non-partisanship (especially in public service), and the separation of public office and partisan political activity. Public officers are required to enforce compliance with these principles.

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

• On 30 May 2025, the Supreme Court in NHIF Management Board v Kenya Union of Commercial Food and Allied Workers & Another held that board members, chairpersons, CEOs, and employees of statutory public bodies are public officers. The Court reaffirmed earlier decisions of the Court of Appeal that board members of state corporations are public officers under Article 260. The ruling is binding.
• The judgment is explicit: “We find and hold that the Appellant handles public funds and as such, fell squarely within public service, and its employees, by parity of reasoning, were public officers.”

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

• Position: He is a Board Member of LAPFUND, a statutory public fund handling pensions for local authorities. As such, he is a public officer by Article 260 and by the NHIF Supreme Court decision.
• Deadline: The seven-day deadline after the seat was declared vacant has passed. He has not resigned from LAPFUND as of the latest credible reports.
• Legal Impact: Because the law is mandatory, his nomination (or any attempt to run) is invalid by operation of law. IEBC has no discretion to accept his nomination papers; any such submission is legally void.

MCA David Ndakwa & Others

• MCA David Ndakwa is clearly a public office holder (a Member of County Assembly). If he too did not resign within the prescribed seven-day period after the vacancy was declared, then he is likewise disqualified.
• Other contestants: If any hold public offices (statutory boards, state corporations, etc.) and failed to resign in time, then the same legal consequences apply.

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

• IEBC: Must reject any nomination papers from Seth Panyako, MCA David Ndakwa, or any other person who did not resign within seven days after the Speaker declared the seat vacant. The Commission is obliged to enforce Section 43 (5A) and Article 260, and to ensure that only eligible candidates are admitted.
• Courts: If IEBC fails its duty, aggrieved parties should swiftly seek judicial review or file election petitions to enforce the law. Given the Supreme Court’s recent ruling and the constitutional definitions, such petitions are likely to succeed.

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.}