A rights activist has filed a complaint at the Judicial Service Commission (JSC) against a High Court judge who declined to stop the Nairobi County Assembly from vetting Anne Kananu Mwenda for the position of deputy governor due to legal questions surrounding the process of her nomination.
Mr Henry Namiti Shitanda accuses the judge, Mr Anthony Mrima, of incompetence and bias for dismissing applications that had been lodged by activist Okiya Omtatah, politician Habil Kongo and former governor Mike Sonko seeking to suspend the vetting of Ms Mwenda.
In the letter copied to acting Chief Justice Philomena Mwilu, the complainant says the judge went against all the principles of law regarding issuance of conservatory orders.
"Whereas this is a high-octane public interest case, it is instructive that the public interest in this matter is extreme. It demonstrates that the judge was clearly biased in declining issuance of conservatory orders and the judge went against all the principles of law regarding issuance of conservatory orders and, to this end, I request that you peruse the court files and you will clearly reach the irresistible conclusion of my observation," says Mr Shitanda.
The letter is also copied to Justice Mrima and the presiding judge of the Constitutional Division.
He notes that the judge held that the applicants had established an arguable case in their arguments on why Ms Mwenda's vetting should have been suspended.
But he went ahead and declined to grant the orders sought on grounds that there was a remedial measure that the court can take even after the disputed actions. The decision paved the way for Ms Mwenda's vetting, approval and subsequent swearing-in as the deputy governor.
"It is noteworthy to observe that an issue has arisen whereby the Governor deponed that he actually withdrew the nomination of Ms Mwenda, an issue which is germane to the petition but the judge ignored, hence has perpetuated an illegality and has put the Constitution of Kenya on trial and which facts trace my complaint," says Mr Shitanda.
He claims that courts are “under siege by the State machinery to ensure sanitisation of the illegality by the county assembly and Senate to impeach Mr Sonko”.
"I have taken time to peruse some of the decisions by the judge on previous matters he has handled regarding issuance of conservatory orders where he declined very few and, in the instance case, he has departed from his decisions," claims Mr Shitanda.
Questions have been raised on the constitutionality of Ms Mwenda's swearing-in for the role of deputy governor, with the Law Society of Kenya saying it may challenge it in court.
Multiple petitions have also been filed in court questioning the legality of her possible take-over of Nairobi governorship.
Thirdway Alliance petition
Thirdway Alliance Party, in its petition, claims that there is an attempt to ensure the by-election scheduled for February 18 does not happen by installing the deputy governor as the governor.
"Such a move is illegal and unconstitutional and a blatant violation of Article 38 on the right to vote. This petition questions the ulterior motives of the county assembly as the political class is keen on usurping the sovereign power of the residents of Nairobi County to exercise their democratic right under Article 38 to elect their governor in a democratic process," reads the party's petition.
Led by its officials Angela Mwikali and Miruru Waweru, the party argues that once a vacancy occurs in the office of the governor in the circumstances contemplated by Article 182 (4), an election is to be held within 60 days after the Speaker assumes the office of the county governor.
They add that the Speaker, unless otherwise removed from office under the Constitution, is supposed to hold office of the governor until the newly-elected county governor assumes office following the next election.
"The only way for Nairobi County to have a governor is for the residents of Nairobi to go back to the polls to elect a new governor who will serve the remainder of the term, ending in 2022," says Mr Waweru in his affidavit.