End of the road for Robert Monda as High Court clears way for Simba Arati's new deputy
Kisii Deputy Governor Robert Monda during a function at Gusii Stadium on January 23, 2022.
The High Court in Nyamira has set aside conservatory orders that prevented the Senate from gazetting the impeachment notice of former Kisii Deputy Governor Robert Monda.
The Senate can now gazette the impeachment, paving the way for the swearing-in of a new deputy governor in Kisii.
In a ruling delivered virtually on Thursday, Justice Wilfrida Okwany said that once an impeachment process is concluded, just like an election, the will of the electorate prevails and cannot be stopped or repeated by conservatory orders.
"Having found that the respondent has made out a case for the grant of the exparte conservatory orders and having found that the application does not meet all the parameters set for the grant of conservatory orders, the application dated April 1, 2024 is not merited and is hereby dismissed," Justice Okwany ruled.
The judge went on to explain that the impeachment of the governor or his deputy is a constitutional process provided for and governed by both the constitution and the statutes. And it was for this reason that a decision was taken by the majority of the members of the County Assembly and the Senate as representatives of the electorate.
"I find that the moment the Senate passed the resolution to impeach Dr Monda, the office of the Deputy Governor immediately became vacant, thus setting the stage for the vacancy to be filled within the prescribed timeframe. I find that the public interest in this case supports compliance with the constitutional and statutory timelines for filling the vacancy of the Deputy Governor of Kisii County," the judge ruled.
She continued: "I find that in the circumstances of this case, the rights/interests of the people of Kisii County to be represented and served by a duly appointed Deputy Governor following the impeachment of Dr Monda far outweigh the prejudice, if any, that the applicant herein will suffer if the orders sought in her application are not granted.
The Kisii County Assembly had already vetted Elijah Obebo in anticipation of his swearing in. But the conservatory orders made it impossible for Mr Obebo to be sworn in.
In her ruling on Thursday, Justice Okwany said the appointment of Dr Monda's replacement was done within the parameters of the law.
Justice Okwany said the swearing-in of the new DG could now take place because his appointment was a correct procedure under the constitution.
"The decisions of the Senate can only be challenged during the substantive hearing of the petition and not through the granting of interim orders. I further find that since the office of the deputy governor is a public office, which does not belong to any particular individual, it follows that once the incumbent is impeached, he must make way for the next incumbent unless and until such impeachment is set aside or quashed by an order of the court," the judge said. The judge said in her virtually delivered judgment.
The embattled former DG, through a petitioner, Purity Moraa, had successfully persuaded a Machakos court to issue an order directing that the deputy governor's position should not be filled pending the hearing of the application.
"It is hereby ordered that the status quo be maintained/stayed/. The stay of execution of the order of the Senate and the gazette is stayed pending the hearing of the inter partes of the instant petition and the preservation of the subject matter," read Lady Justice M. Muigai's order of 4 April 2024.
Justice Muigai directed the Senate to file responses to the notice of motion dated April 2, 2024, and further directed that the case be mentioned before a principal magistrate in Nairobi with a related matter on 22 April 2024 "for directions as to hearing and determination".
After mention in the Nairobi Milimani Court, the case was transferred to Nyamira, together with other matters relating to Dr Monda's impeachment.
In the Nyamira case, Ms Moraa and Dr Monda argued that a prima facie case had been made out for the grant of the interim orders in order to preserve the substance of the petition and enable the court to determine the legality of the impeachment process.
They cited Article 23 of the Constitution, which gives the Court the mandate to issue conservatory orders. They contended that the petition would be rendered nugatory if the conservatory orders were not granted and that no party would be prejudiced by the conservatory orders.
The respondents, on the other hand, submitted that a party seeking conservatory orders must not only show that it has a prima facie case with a likelihood of success, but also that there is a real risk that it will be prejudiced if the Court does not grant the conservatory orders. They argued that the application did not meet the threshold for the grant of conservatory orders.
However, Thursday's ruling gave hope to the petitioner, Ms Moraa, and the former deputy governor, Dr Monda, after confirming that they did have a prima facie case in the petition, but that it needed to be heard and determined before any relief could be offered.
The court ruled that the refusal to grant the interim orders would not jeopardise the petition because a decision could be reached that would offer remedies, including reinstatement or compensation to the aggrieved party if he proved his case.
"The petitioner has established a prima facie case by challenging the manner in which the impeachment was handled both at the County Assembly and the Senate. She has highlighted several procedural and constitutional irregularities that were observed in the process and it raises arguable questions of law," Justice Onkwany ruled.
She cited the case of former Wajir governor Mohamed Mohamud, who was impeached by the county assembly but later reinstated by the court, as one of the cases that guided her ruling.
The petition will be heard at the Nyamira High Court on July 22, 2024.
