Mombasa Governor Hassan Joho wants a petition seeking to bar him from holding public office struck out on the grounds that the court lacks jurisdiction to hear it.
The petition says Mr Joho and Changamwe MCA Bernard Ogutu, having been found guilty of disobeying a court order and fined Sh250,000 and Sh20,000 respectively, have violated Chapter Six of the Constitution and are thus no longer eligible to hold their offices.
Mr Joho argues that the petition is not the proper way to remove an elected official from office.
“The present petition is not an election petition and cannot therefore amount to a proper mode of removing the governor from office under the Constitution,” Mr Joho says.
The petition, filed by Mombasa businessman Ashok Doshi and his wife Pratibha, also wants the court to rule that Mr Joho and Mr Ogutu are no longer eligible and have ceased to be qualified to hold their offices.
How to remove a governor
But Mr Joho says the Constitution and the County Governments Act provide for how to remove a governor from office.
“It is therefore contrary to law for the petitioners to side-step and avoid using any and all provisions and come to this court for a remedy,” Mr Joho’s application says.
Mr Doshi has opposed the application, saying that Mr Joho was eligible for election when he was voted into office but has ceased to be so after he was found guilty and sentenced by the Environment and Land Court.
He also argues that the couple’s petition does not seek to remove the governor from office but seeks a declaration that the office has become vacant.
Mr Doshi, who says the court has jurisdiction to hear the case, said Mr Joho cannot contend that he must hold the office of the governor of Mombasa by virtue of Article 38 of the Constitution yet he is no longer eligible to hold it.
“By holding the office of the governor of Mombasa after ceasing to be eligible, Mr Joho has denied the voters and residents of Mombasa their constitutional rights to be represented by a qualified governor,” he says.
The couple argue that by disobeying a court order, the two leaders failed to demonstrate respect for the people, thus violating the Constitution and are not suitable to represent them.
They say Mr Joho and Mr Ogutu are state officers and are bound by the Constitution to discharge their duties with good governance, integrity, transparency and accountability.
In May, Mr Joho was fined Sh250,000 or in default serve a 60-day jail term after he was cited for contempt of court for disobeying a court order restraining county officials from trespassing on a parcel of land belonging to the couple.