BY SAM ALFAN.
Samburu Governor, Moses Kasaine Lenolkulal will challenge the court of appeal decision that upheld Justice Mumbi Ngugi declining to revise an order barring him from accessing office pending hearing and determination of his trial.
Governor Moses Kasaine Lenolkulal filed a notice of appeal at Supreme Court registry informing the court that he was dissatisfied with the decision of the appellate court that agreed with the high court landmark ruling that has caused trouble to other two Governors.
“Take notice: I, Moses Kasaine Lenolkulal, being dissatisfied with the decision of the court of appeal given at Nairobi by Justice David Musinga, Justice Steven Gatembu and Agnes Murgor on December 20 , 2019 intendeds to appeal to the supreme court against the whole of the decision.” Said the Governor
The Court of Appeal last year ruled that an order barring county bosses from accessing their offices pending trial over graft charges does not amount to their removal.
Justice Jamila Mohammed read the two judgement on behalf of a three judge bench:Justice David Musinga, Agnes Murgor and Steven Gatembu that the Governor has not been ordered to vacate his office.
“He may access his office, but on conditions imposed by the court though his access is limited, he remains the Governor.” Ruled Justice Jamila in Samburu Governor Moses Lenolkulal appeal.
The appellant court noted that the allegation the imposition of bail terms barring the Samburu Governor from the county offices was tantamount to a removal from office and is therefore unfounded.
“As such, we agree with the High Court that the application of section 62(6) was unnecessary , and the learned judge was not compelled to apply that provision to the circumstances of this case.” Added the judges.
However, the judges found that the bail terms did not remove him from office, but merely required compliance with constitutionally sanctioned terms. That of necessity limited his access to the county offices until determination of the trial.
“We are satisfied that Justice Mumbi Ngugi determines and analysed all matters that we placed before her and as we have found that no misdirection is exercise of discretion, we have no basis to interfere with High Court decision. The appeal is unmerited is for dismissal with cost to the Lenolkulal”, ruled judges.
At the same time, the appellant court also held that Waititu remains the Governor of Kiambu County and his entitled to full pay.
“Waititu has not been suspended from his office, he is still the Governor of Kiambu county , he is still entitled to his full pay not half pay”, Jamila ruled.
“In our view, to the extent that the trial magistrate nor Justice Ngenye Macharia’s holding purported to remove or suspend waititu as the Kiambu Governor, section 62(6) of ACECA had no application in the matter that was before her.”
Both Waititu and Lenulkulal had appealed to have the ruling barring them from accessing their overturned to enable them perform their constitutional mandate in the office of GovernorSamburu Governor Moses Lenolkulal had urged the court of appeal to quash decision by High Court barring him from accessing his office over corruption charges.
In the appeal, the embattled Governor said the judge erred in finding section 62(6) of Anti-Corruption and Economic Crimes Act (ACECA) contravenes the constitution.
Through Lawyer Paul Nyamodi, Lenolkulal told the appellate court that judge erred in law in finding that a proper reading of section 62 (6) of the Anti-Corruption and Economic Crimes Act requires the Governor once charged with ACECA should not continue to perform the function of Governor while criminal case is pending before court.
He argued that the judge erred in law by introducing new issues and arguments into the ruling that were never argued before High Court at the hearing of the application for revision which was not opposed. He said the court denied him the opportunity to respond contrary to the law.
Lenolkulal in his appeal also argued that in failing to find the orders of trial court barring him being a constitutional holder from accessing his office unless the authorisation of the Chief Executive officer of EACC, rendered the Governor subject to the authority of EACC CEO contrary to the law.
He claimed that the judge erred in failing to find that the trial court order of May 15, 2019 barring the Governor from accessing his office unless authorized by EACC CEO was unlawful and unconstitutional.
He accused the judge of being bias and being prejudicial against him by allowing her personal views or beliefs which were contest to the express provision of the statute law and which found itself in the ruling.