The electoral agency wants a court to dismiss former Nairobi County boss Mike Sonko’s petition challenging its decision to disqualify him from contesting the Mombasa governor’s race.
The Independent Electoral and Boundaries Commission (IEBC) argues that the case violates the Elections Act as it seeks to circumvent the agency’s internal dispute resolution processes.
Through lawyer Ndaiga Gacheru, the IEBC told the court that Mr Sonko had not exhausted all dispute resolution mechanisms before filing the case.
Mr Gacheru told Mombasa High Court Judge John Mativo that Mr Sonko had not demonstrated exceptional circumstances that would allow him to file the case without going through the IEBC’s dispute resolution processes.
“Contrary to submissions earlier made, there must be a formal application by the applicant (Mr Sonko) to be exempted from the dispute resolution mechanism,” said Mr Gacheru, adding that the case had not satisfied the doctrine of exhaustion.
The IEBC also argues that Mr Sonko had conceded that there were internal dispute resolution mechanisms that were available to him.
“This is an election-related dispute falling under IEBC through its internal dispute resolution mechanism,” he said.
The IEBC also argues that the issues raised by Mr Sonko are also being considered in another case being heard by a three-judge bench in which petitioners are seeking to bar him from vying for governor.
It argues that Mr Sonko is seeking similar orders as in the case being heard by the three judges as they touch on the issue of clearance to contest the Mombasa governor’s seat and acceptance of nomination papers.
Through lawyers Derrick Odhiambo and Titus Kirui, Mr Sonko opposed the IEBC’s objection, arguing that the Elections Act allows exemptions from the IEBC’s dispute resolution mechanisms.
Mr Odhiambo argued that Mr Sonko’s application before the court is not an election dispute and that the IEBC tribunal does not have the powers to issue the order the agency is seeking.
He also said the IEBC had waived the exhaustion doctrine aspect by its media release communicating the disqualification of Mr Sonko even before he presented his credentials.
“The dispute before you is purely administrative and not an election dispute,” said Mr Odhiambo, adding that the court has jurisdiction to determine whether the right to fundamental freedoms has been denied.
Mr Odhiambo said that the IEBC’s argument that the issues Mr Sonko raises are under judicial consideration elsewhere does not apply in the case and that the jurisdiction of the High Court is intact where a public body has acted beyond its legal powers.
Mr Kirui added that Mr Sonko was apprehensive that he would not get a fair hearing before the IEBC considering what the agency said in its media release.
“The utterances leave no doubt that the chairperson (of the IEBC) and the electoral body has either a fixed mind or is hostile to the applicant (Mr Sonko),” said Mr Kirui.
Before the hearing of the preliminary objection, Mr Sonko’s lawyers had sought to have the case adjourned, saying they needed to get instructions from their client, but the court declined.
In his application, Mr Sonko wants the court to quash IEBC chairperson Wafula Chebukati’s decision to disqualify him in a June 4 media release.
Mr Sonko also wants the court to set aside the decision of the IEBC Mombasa County returning officer not to clear him to vie for governor.
He argues that his impeachment proceedings have not been concluded and his case challenging it is pending in the Supreme Court.
“There are other connected matters pending in connection with this matter in which the applicant (Mr Sonko) has an interest and in which the office of the Attorney-General is acting,” Mr Sonko says in his suit papers.
Mr Sonko says the IEBC’s decision to bar him from running is premature, prejudicial and oppressive, and has caused irredeemable damage and untold suffering to him.
For this reason, Mr Sonko wants his application heard and determined “expeditiously” and a stay of the IEBC’s decision granted pending the hearing and determination of his petition.
“This is a matter of significant public interest consideration and policy and it is also in the interest of justice that it is heard and determined expeditiously given the tight electoral timelines,” says Mr Sonko.
Mr Sonko argues that the IEBC decision is erroneous and discriminatory as there are other candidates who were impeached or convicted and have active appeals in court but have been cleared to run yet he was disqualified even before presenting his credentials.
He also wants the IEBC compelled to receive his nomination papers and clear him to vie pending the hearing and determination of the application inter partes.
Meanwhile, Mr Odhiambo told the court that he had been attacked earlier in the day by two unknown people in the Nyali area.
He said he was rescued by General Service Unit officers and that one of the attackers was wearing a military uniform and the other had a sword.
He said Mr Sonko’s lawyers were living in fear and feared they were not safe.
The court will deliver its ruling on Monday next week.