Courts extends orders against Sonko impeachment motion

Nairobi Governor Mike Sonko at the Milimani Law Courts on September 17, 2020.

Photo credit: Dennis Onsongo | Nation Media Group

What you need to know:

  • Justice Byram Ongaya made the decision on Friday after dismissing a preliminary objection filed by former Speaker Beatrice Elachi, who sought dismissal of Sonko’s petition challenging the impeachment.
  • The judge said the Sonko case is a dispute that is within the court’s constitutional and statutory jurisdiction to decide matters about employment and labour relations.

The Labour Court has extended interim orders issued seven months ago, stopping the impeachment of Nairobi Governor Mike Sonko.

Justice Byram Ongaya made the decision on Friday after dismissing a preliminary objection filed by former Speaker Beatrice Elachi, who sought dismissal of Sonko’s petition challenging the impeachment.

In urging the court to dismiss the case, Ms Elachi argued that there was no employer-employee relationship between the governor and the county assembly and that the court, therefore, lacked jurisdiction to hear and determine the dispute.

She added that the case contravenes a fundamental principle of law that maintains that all three organs of government remain separate and should not encroach upon each other.

Ms Elachi also argued that the governor’s case was bad in law and an abuse of the court process.

Jurisdiction

However, Justice Ongaya ruled that the governor did not have to establish an employer-employee relationship with the county assembly so as to file the petition at the Labour Court.

He said impeachment, being a disciplinary process for removal from office, is obviously a human resource function being undertaken within the relevant constitutional and statutory provisions.

The judge further said the Sonko case is a dispute that is within the court’s constitutional and statutory jurisdiction to decide matters about employment and labour relations.

He added that according to Section 12(2) of the Employment Labour Relations Court Act, 2011, a case may be filed in the court by or against any office established under any written law.

A case may also be filed by or against an employee, an employer, trade union, an employers’ organisation, federation, Registrar of Trade Unions or the Cabinet Secretary.

The Act also allows the court to determine disputes about employment by and against persons not being employees or employers or parties to the contract of service.

Sonko’s right

Justice Ongaya said entertaining the petition is not undermining the delicate balance on institutional comity between the three arms of government.

The same is not intruding in the political realm of things, he ruled.

“The court finds the justifiability of the present petition alleging an unconstitutional and illegal impeachment process is properly anchored on Article 236 of the Constitution on protection of public officers,” he said.

The judge added that issues of constitutionality and legality of the impeachment process are justifiable and fall within the determination by the court.

He said the governor need not wait for his rights and fundamental freedoms to be violated in order to move to court as he is entitled to arrest the threatened violation.

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