76 3.5.5.7 The intention of the law is also to prohibit a person from holding two state offices simultaneously (Stephen Wachira Karani v Attorney General & 4 Others, Constitutional Petition 321 & 331 of 2017). Sections 43(5) and (6) of the Elections Act also aim at promoting, among other things, the national values and principles of good governance and integrity (Public Service Commission & 4 Others v Eric Cheruiyot & 32 Others, Civil Appeal 119 & 139 of 2017 (consolidated)). 3.5.5.8 To ensure that government functions are not interrupted during an election period, the requirement of resignation of state officers does not apply to the following state officers: the President, the Deputy President, a Member of Parliament, a County Governor, a Deputy County Governor and a Member of County Assembly (s 43(6), Elections Act; and Kennedy Irungu Ngodi & Another v Mary Waithera Njoroge & 11 Others, Petition No. E369 Of 2020). To require them to resign six months to a general election would be to reduce their term of office to four and a half years. This would create a vacuum as no by-elections can be held within that period. 3.5.5.9 However, this construction does not hold in the event of a by-election for Member of Parliament as the term of the County Assembly would still be running. A resignation would, therefore, be required if a member of County Assembly seeks to contest a parliamentary by-election (Stephen Wachira Karani v the Attorney General & 4 Others, Constitutional Petition 321 & 331 of 2017). 3.5.5.10 Moreover, the offices of Member of Parliament and Member of County Assembly fall vacant at the end of the term of the relevant house. This obviates the need for them to resign before the general election (Annie Wanjiku Kibeh v Clement Kungu Waibara & Another, Civil Appeal No. E468 of 2020). The law does not prohibit a Member of County Assembly from being nominated to vie for a parliamentary seat by a political party (Stephen Wachira Karani v Attorney General & 4 Others, Constitutional Petition 321 & 331 of 2017). 3.5.5.11 Recent legal developments indicate a move towards relaxation of restrictions against public servants’ engagement in electoral politics. In 2017, Parliament amended the Elections Act, 2011 following the decision in Union of Civil Servants & 2 Others v IEBC & Another, Nairobi High Court Constitutional Petition No. 281 of 2014, by reducing the resignation period for public servants seeking to contest a by-election from 7 months to 7 days of the declaration of a vacancy (s 43(5A), Elections Act, 2011). 3.5.5.12 The Employment and Labour Relations Court subsequently declared, in Eric Cheruiyot v IEBC & 3 Others, Kericho Employment and Labour Relations Court Constitutional Petition No. 1 of 2017, that public servants seeking to vie for elective positions in a general election could remain in public service until the date of nominations. The Court held in part: The hardship of the disqualification for public servants seeking elective positions was intended to be mitigated by parliament in its legislation as directed by Article 82 of the constitution. It was not anticipated that parliament would enhance this disqualification by coming out with legislation that is unfriendly and limiting to the enjoyment of fundamental rights by public servants. I therefore find that Section 43(5) of the Elections Act is unjustifiable, irrational, most unreasonable, oppressive and hold as such. 3.5.5.13 However, this decision was overturned by the Court of Appeal. In Public Service Commission & 4 Others v Eric Cheruiyot & 32 Others, Civil Appeal 119 & 139 of 2017 (consolidated), the Court ruled that the requirement for public servants to resign six months before a general election is necessary as it ensures that the IEBC has sufficient time to undertake its processes and prevent unnecessary interruptions to the elections calendar. It, therefore, remains reasonable BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION