The High Court, sitting as the Court of Disputed Returns, on Wednesday declared the Family First candidate was duly elected.
Lawyers for former Labor senator Anne McEwen had wanted the declaration delayed so it could argue Gichuhi was not eligible to be elected because she retained Kenyan citizenship.
But the court refused the Labor challenge, with Justice Geoffrey Nettle saying the issue of Guchuhi’s citizenship was not new and McEwen could have made an application before Wednesday.
The court heard the Kenyan High Commission had advised the Commonwealth that Gichuhi was not regarded as a Kenyan citizen.
She became an Australian citizen in July 2001.
McEwen’s barrister Jeremy Kirk SC had argued the High Court should determine the issue of whether Gichuhi was eligible for election.
He said the issue was whether Kenyan law meant Ms Gichuhi was no longer a Kenyan citizen once she became an Australian citizen and also whether she took reasonable steps to renounce her Kenyan citizenship.
Gichuhi won a recount of votes sparked after the court earlier ruled former Family First senator Bob Day had been ineligible to stand at last year’s federal election.
Day resigned his post in November last year to deal with the collapse of his Home Australia group of companies.
However, six days later the Senate referred his eligibility for election to the High Court on the grounds he may have benefited from the commonwealth through a lease arrangement relating to his Adelaide electoral office.
Under section 44 of the constitution, a member or senator can be disqualified where there is “any direct or indirect pecuniary interest in any agreement with the public service of the commonwealth”.
The court decided earlier this month that Day was incapable of sitting as a senator under that section because the financial benefit he stood to gain from the commonwealth paying rent constituted an “indirect pecuniary interest”.
That’s because rent was due to be paid into a bank account owned by Day.
The court found the vacancy should be filled by a “special count of the ballot papers” – rather than by a Family First choice, given he was invalidly elected – with a single judge to make further directions and orders.
Gichuhi was the second candidate on the Family First ticket, receiving only 152 first-preference votes.
– with AAP
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