The High Court has declined to have a petition challenging former Nairobi Governor Mike Sonko’s suitability to contest for Mombasa Governor’s race in the August 9 polls withdrawn.
However, it has allowed one of the petitioners in the case who sought for the withdrawal, Mr Ndoro Kayuga, to withdraw from the petition with immediate effect.
“The first petitioner (Mr Kayuga) be and is hereby allowed to withdraw from this petition and is discharged from these proceedings immediately,” ruled Justice John Mativo.
Justice Mativo, sitting in Mombasa further ordered that the withdrawal of Mr Kayuga does not and will not in any manner affect the petition.
The judge said that Mr Kayunga’s co-petitioner Mr George Odhiambo shall proceed with the petition to its conclusion.
In his decision, Justice Mativo said that the reasons cited by Mr Kayuga for the withdrawal of the petition does not surmount the threshold required to have it withdrawn.
The court said that the withdrawal of the petition can only be made if public interest will not suffer, there is no abuse of the processes of the law, if parties acted in good faith and it is not time barred.
Justice Mativo also ruled that it is only the court which can determine the juridical effects of the petition and not the petitioner.
“The court may proceed to hear the petition despite the wishes of the petitioner to discontinue,” said Justice Mativo adding that granting the orders sought is a matter of judicial discretion.
Justice Mativo further said that the court’s discretion is governed by rules of law and equity.
Mr Kayuga had told the court that he wanted to withdraw the petition saying that his intention was based upon his realization that Mr Sonko’s removal as governor of Nairobi was more political than legal.
Mr Kayunga said that on the evening of April 25, Mr Sonko appeared on a television programme where he articulated his tribulations as the governor of Nairobi.
“Through the said interview, I came to learn that his tribulations and the impeachment were more political than legal,” said Mr Kayunga in his affidavit.
Mr Kayuga further said that though Mr Sonko’s impeachment was upheld by both the High Court and the Court of Appeal, there was a pending appeal at the Supreme Court which was yet to be determined.
“Based on the pending appeal at the Supreme Court, the current petition is therefore premature,” said Mr Kayunga.
Mr Kayunga added that he had not been coerced, threatened or forced to withdraw the petition and that it was his own free will.
On his part, Mr Odhiambo through lawyer Willis Oluga opposed the application for the withdrawal of the case saying he wanted to conclusively focus on it.
“The first petitioner (Mr Kayuga) is at liberty to exit the petition but should not go with the affidavit, however if the affidavit is withdrawn, we will make the same averments as those of the first petitioner,” Mr Oluga argued.
In the petition, Mr Odhiambo argues that Mr Sonko having been found unsuitable to hold the office of governor of Nairobi, he is disqualified from holding any office.
He argues that despite being disqualified from holding any other state office, Mr Sonko has expressed intention to contest and vie for governor of Mombasa in the August 9 polls and was nominated by Wiper party.
According to the petitioners, Mr Sonko, any county governor or a person who has been dismissed or removed from office by impeachment but has declared interest or has been nominated to be elected in any state office has violated the constitution.
“The first respondent (Mr Sonko) having been impeached and removed from the office of governor Nairobi is disqualified from holding any other state office by virtue of Article 75 (3) of the constitution,” part of the petition states.
The petitioner wants a declaration that Mr Sonko, having been impeached, is disqualified from holding any state office including that of Mombasa governor.
They also want a declaration that any county government or any other person who has been removed from office through impeachment or disciplinary procedures is disqualified from holding or being employed in a state office.
Separately, a petition by Haki Yetu, Kituo Cha Sheria and Transparency International that also seeks a declaration that Mr Sonko having been impeached as Governor of Nairobi is disqualified from holding any other state office including that of Mombasa Governor will be mentioned today (Wednesday)
The organizations argue that Mr Sonko was removed from office by impeachment for violating and contravening the constitution by among others failing to promote public confidence in the integrity in the office of the Governor.
“Having been found unsuitable to hold the office of the Governor of Nairobi City County, Mr Sonko is equally unsuitable to hold any other state office,” part of the petition states.
Mr Sonko, Wiper Democratic Movement party, the Independent Electoral and Boundaries Commission (IEBC) are respondents in the two petitions.