Final push: Ousted Kisii deputy governor files 5 cases in court to save his seat
Kisii Deputy Governor Robert Monda before the Senate for his impeachment hearing on Wednesday, March 13, 2024.
In what appears to be a desperate move by ousted Kisii deputy governor Robert Monda to reclaim the seat, the former DG has filed five cases in different courts across the country.
Dr Monda, together with proxies and political allies, has been criss-crossing the corridors of justice, seeking court orders and rulings that can potentially stop his imminent replacement.
Last week, the beleaguered DG, through a petitioner, Purity Moraa, successfully persuaded a Machakos court to issue an order directing that the DG'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 senate order and gazette is stayed pending the hearing of the inter partes of the instant petition and the preservation of the subject matter," read Lady Justice Margaret Muigai's order dated April 4, 2024.
Justice Muigai ordered the Senate to file responses to the notice of motion dated April 2, 2024, and further ordered that the case be assigned to a principal resident judge in Nairobi on April 22, 2024, along with a related matter, "for directions as to hearing and determination".
An earlier petition against the Senate in a Machakos court on 20 March 2024 by Jared Ratemo Mairura was transferred by Justice Francis Rayola to the Milimani Commercial Court-Nairobi where it will be heard by Justice Eric Ogola on 10 April 2024.
"It is hereby ordered that in order to maintain the status quo and allow the petitioner to ventilate the issues raised in this petition, no gazette shall be issued declaring the seat of the DG Kisii County vacant until the said date," Justice Rayola said.
A week later, Mr Ratemo, through Munyao Muli & Company Advocates, sought to withdraw the case from the Milimani court, but the judge refused.
“Take notice that the petitioner herein has withdrawn the whole suit and all attendant orders,” the court papers read.
The former deputy governor has also sought to restrain some people from disclosing the matter of his impeachment and the ensuing court proceedings.
In particular, on 5 April 2024, Dr Monda sought an order restraining blogger Cyprian Nyakundi or his agents or any other person from posting, publishing or broadcasting on social media anything relating to the case.
In response, Lucy Ambasi of the Milimani Commercial Magistrate Court restrained Mr Nyakundi, as prayed for by the applicant, pending hearing and determination of the inter partes application.
Justice Ambasi's order read: "... an order of interlocutory injunction is hereby granted restraining the respondent, his agents, servants and/or representatives or any other person purporting to quote his postings from posting, keeping posted, publishing and/or broadcasting any tweets, posts, words, publications and utterances and/or statements attributed to one Hon Robert Monda which either directly or indirectly publishes the respondent's X handle."
The application involving Mr Nyakundi will come up for hearing on 19 April 2024.
All this comes as Kisii County Governor Simba Arati's nominee for the DG post, Elijah Obebo, was successfully vetted by the Kisii County Assembly.
Prior to his nomination for the position, Mr Obebo was the substantive chairperson of the Kisii County Public Service Board.
However, concerns have arisen as to whether the Speaker, Dr Philip Nyanumba, followed due process in seeking to fill the vacancy created by the successful impeachment of Dr Monda by both the Kisii County Assembly and the Senate.
In a letter to the Orange Democratic Movement (ODM) chairperson of the National Electoral Commission, Independent Electoral and Boundaries Commission (IEBC) chief executive officer Marjan Hussein Marjan on 2 April regretted that the commission could not yet engage in the process of filling the vacancy.
Mr Marjan noted that the IEBC currently lacks a chairperson, who is the only person mandated to initiate the process of filling the vacancy of the deputy governor.
"It is noteworthy that in terms of the constitutional provision and the IEBC Act, it is the chairperson of the commission who issues gazette notices. However, in view of the absence of the commission chairperson, we wish to inform you that the commission is not in a position to appoint the county returning officer by gazette and subsequently gazette the DG approved by the county assembly," Mr Marjan's correspondent read in part.
Accordingly, the CEO has advised ODM to seek a court order possibly directing him to perform the functions of the commission chairperson in filling the position.
When a vacancy occurs in the office of the deputy governor, the governor and the IEBC chairperson are mandated to appoint a county returning officer.
The nominee then appears before the returning officer to present the required constitutional and statutory documents for the position.
If found qualified, the county returning officer then issues a nomination certificate and informs the governor, who in turn forwards it to the county assembly for approval or rejection of the nominee in accordance with Section 32(d) of the County Governments Act.
If approved by a majority of the members of the county assembly, the speaker of the assembly forwards the name and accompanying recommendations to the IEBC for confirmation, which then publishes the nominee in the Kenya Gazette to pave the way for swearing in by the speaker.
In another case, Dr Monda suffered a major setback after the court failed to stop the gazetting of the new DG nominee.
The High Court sitting in Kisii has adjourned ruling on an application for an injunction against interested parties in a petition filed by Dr Monda against the Senate, the Speaker of the Senate, the Government Printer and the Attorney General over his impeachment.
Lawyer Ochieng Oginga, who is representing the interested parties, echoed the sentiments of the petitioner and argued that the county government and the Kisii County Governor should be restrained in the petition.
"The petitioner deliberately left out the county government and the county governor in his petition," Oginga argued.
The lawyer further told the court that the governor and the county government have the right to be joined in the proceedings in full compliance with the Act 25 on the right to a fair trial.
Lawyer Katwa Kigen, representing DR Monda, said her petition was based on the impeachment proceedings conducted by the Senate.
Mr Kigen objected to the application to have the interested parties restrained from filing the petition, noting that "the petition is not related to or aware of two other petitions filed in Nairobi and Machakos courts".
Lawyer Wilkins Ochoki, representing Dr Monda in his objection, said the burden of proof was on the petitioner as to who should be included in the petition.
"It is for the petitioner to prove his case and not the parties and we are ready to proceed with the application in view of the strict time frame, we will proceed with the application," Mr Ochoki told the court.
The conservatory orders sought to stop the process at the county assembly, the clerk and the speaker from gazetting the new DG.
