BY SAM ALFAN.
The High Court has suspended Nairobi gubernatorial by-election scheduled for February 18.
Justice Anthony Mrima suspended the by-election after impeached Nairobi Governor Mike Sonko, filed a case arguing that his case raises weighty issues, which might be rendered useless if the by-election is not suspended.
The Judge suspended the gazette notice published by the Senate Speaker Ken Lusaka on the December 17, 2020 pending the hearing and determination of Sonko’s case.
“A conservatory Order be and is hereby issued suspending any Gazette Notice on the Assumption of Office of Governor of Nairobi City County dated December 18, 2020 pending the hearing and determination of the Petition”, ordered the judge.
The ousted city county boss argued that he should be accorded a chance to articulate them and he will suffer irreparable damage not compensatable in monetary terms because he stands to lose his position as the governor of Nairobi City county without the due process of the Law, the rule of law and constitutionalism.
He adds that on the preponderance of evidence, the scales of justice tilts in favour of issuing the conservatory Orders because there is sufficient evidence to demonstrate that the process did not meet the legal threshold of 2/3, it was not transparent, accountable and verifiable and its integrity is in question.
He further argued that it will be disproportionate to punish him through removal from office which is finality before due process, the rule of law and constitutionalism is strictly followed to safeguard the doctrine of separation of powers, sub-judice and check and balances.
“The Respondents in total disregard of the express provisions of the assumption of Office of the Governor Act moved to swear the speaker of the Nairobi City County Assembly as the acting Governor on the December 21,2020 at 10:00 am at KICC Comesa Grounds.
“Taking the exceptional circumstances of this case into account, it is in the interest of justice to issue the conservatory Orders”, he further added.
He said Nairobi MCAs purported to debate on the December 3, 2020 and impeach him without following the prescribed procedure and the Assembly transmitted the said motion to the Senate vide a letter dated December 4, 2020.
“The Petitioner contends that the Motion was illegal, null and invalid since it did not meet the requisite legal threshold to warrant an impeachment process to commence and that the entre process violated Article 10 (1) and (2) of the constitution of Kenya as it lacked integrity, it was not transparent and verifiable,” he said.
He also contends that the said motion dated the November 25, 2020 was purportedly debated and passed by the Nairobi City County Assembly on the December 3, 2020 in circumstances that are contrary and in violation of democratic principles enunciated under Article 174 (a) and (i) of the Constitution of Kenya, 2020 which requires the devolved system to promote democratic and accountable exercise of power. The Motion also breached the principles of checks and balances and separation of powers.
Consequently, and in view of the foregoing, it is clear that unless restrained by an order of the Court, the assembly is likely to act in violation of the provisions of the constitution and or to perpetuate the constitutional breaches already committed by the Assembly clerk.
He also argue that resolution of the December 3, 2020 was further made by the Nairobi City County Assembly in utter breach and or disregard of the democratic principles and separation of power contrary to Article 175 of the Constitution of Kenya, 2020.
Attendance at the Nairobi City County Assembly’s session on the December 3, 2020 was both physical and virtual whereas the Law and Standing Orders do not contemplate the simultaneous application of both methods of voting for about 57 members and purportedly virtual for others and It is also well settled that some of the MCAs were in Kilifi County outside the jurisdiction of the Nairobi City County and it is not envisaged that they could vote either physically or virtually contrary to the provisions of the Standing Orders.
The MCAs that were outside Nairobi have alleged that their accounts were hacked or corrupted and strangers purported to Log In and vote on their behalf.