Joho fights off petition seeking to declare him unfit to hold public office

Mombasa Governor Ali Hassan Joho wants a petition against him and two senior county officials, which seeks to have them found to have violated the constitution, and thus unfit to hold public office struck out.

Through a preliminary objection, Mr Joho, Ms Asha Abdi (Chief Officer-finance) and Ms Mariam Mbaruk (Finance executive) claim the petition seeks to circumvent alternative procedures and mechanisms provided in law.

The petition by Disney Insurance Brokers Ltd, which has also sued Finance CS Mr Ukur Yattani and Mombasa county attorney Mr Jimmy Waliaula, is a result of an alleged failure by the county government to pay it Sh58.9 million plus interest, despite a decree having been issued.

Mr. Joho and the two officials argue that allegations touching on the ethics and integrity of public officers fall under the mandate of the Ethics and Anti-Corruption Commission (EACC) to independently investigate and make a fair determination.

“With regard to all other complaints and allegations under the Public Service (Values and Principles) Act No 1 of 2015, adequate redress is provided by mechanisms provided for under Section 13 of the Act,” part of the preliminary objection states.

They further argue that the petition seeks to usurp constitutional powers and functions granted to various independent commissions and legal bodies created to deal with the issues thus undermining constitutional structure and order.

“The petition is prejudicial to the first respondent (Mr Joho) and is an abuse of the court process whose natural consequence is the violation of Mr Joho’s constitutional right to due process of the law,” the objection further states.

They also argue that the citation of omnibus provisions of the constitution is contrary to the law because in a case founded on alleged violation of the constitution, the petition must set out with reasonable precision acts or omissions as well as the provisions alleged to be violated.

On his part, Mr Waliaula has filed an application seeking to have the petition dismissed against him or in the alternative his name be struck out in the pleadings.

Mr Waliaula says he has never been mentioned or been party to any proceedings emanating from the petition or any claim the petitioner had with the county government of Mombasa.

According to Disney Insurance Brokers Ltd, despite payment having been due since 2013, it (payment) has not been settled and the amount of money has escalated to Sh108.2 million.

Through lawyer Gikandi Ngibuini, the insurance brokerage firm says the county government did not appeal or challenge the judgement of the court.
The insurance brokerage firm further argues that failure by the respondents to clear the pending bill is illegal and confirms that they do not respect the constitution.

"The respondents who are persons in charge of finance of the county government and who have an obligation of ensuring the decrees issued by the court are settled decided to do nothing on the matter,” part of the petition states.

The company argues that the court issued warrants of arrest against Ms Abdi and Ms Mbaruk in July 2019 and despite efforts by the petitioner to execute them, it has been unsuccessful.

Mr Ngibuini also argues that through a demand letter, the insurance brokerage firm demanded the respondents to comply with the orders of the court but it (letter) has not been acknowledged or replied to.

"The first respondent (Mr Joho) has failed in the discharge of functions and role of the office of the Governor by failing to settle decrees issued against the county government of Mombasa,” part of the suit documents state.

The company says its business has been destroyed by the respondents' failure to settle the decree issued in its favour and that residents of Mombasa are still being burdened with huge costs in form of interest payable. 

"The economy of Mombasa county is at the risk of dragging since residents and businesses cannot survive when the county government does not pay for services and goods supplied to it,” argues the insurance brokerage firm.

The insurance brokerage firm says it has instituted the petition to safeguard its interests, those of the taxpayers and other suppliers whose bills or decrees have not been settled by the county government of Mombasa.

The petitioner is also seeking a declaration that the respondents failed to have regard to personal integrity, character, competence and suitability as state officers holding offices in the county government of Mombasa.

The case has been fixed for hearing on June 23.