Nairobi County will have to wait longer to get a deputy governor after the High Court stopped the swearing-in of nominee Paul Mutunga Mutungi to the position.
This comes after activist Okiya Omtatah on Friday moved to court seeking orders stopping Governor Ann Kananu from appointing Mr Mutungi as deputy governor following his vetting and approval by the Nairobi County Assembly on Thursday.
Justice Hedwig Ong’udi, who certified the matter urgent, issued conservatory orders prohibiting Mr Mutungi from taking oath of office as deputy governor pending the hearing and determination of the application/petition.
The order also prohibits Governor Kananu from appointing the current chief of staff as the next deputy governor.
“Pending the inter-parties hearing and determination of this application, the court is pleased to issue a temporary order of prohibition prohibiting Mr Mutungi from taking oath of office as the Nairobi deputy governor or assuming or occupying the office,” reads the order delivered on November 26, 2021.
In the petition, Mr Mutungi has been listed as the first respondent, Ms Kananu as the second, the county assembly as the third respondent, the Ethics and Anti-Corruption Commission as the fourth respondent and the Attorney-General as the fifth respondent.
The Independent Boundaries and Electoral Commission, the Chief Registrar of the Judiciary and the Chief Justice have been enjoined in the case as interested parties.
In the petition, Mr Omtatah wants the Judiciary to also be stopped from swearing-in Mr Mutungi or in any way whatsoever, appointing any judge to preside over taking of oath by the nominee.
“That as matters stand right now, the governor can appoint Mr Mutungi as the deputy governor of Nairobi any time and he will be subsequently sworn into office immediately. It is extremely urgent that this court issues the conservatory orders to preserve this motion,” reads the petition.
Mr Omtatah argues that the nomination, vetting and approval of Mr Mutungi is a nullity in law since the process was done without first being cleared by the IEBC.
He claims that a person facing active criminal charges in the High Court is ineligible for appointment as deputy governor.
He also accuses the Nairobi County Assembly of rushing the vetting process as well as failing to give room for public participation.
“The county assembly was mistaken to rely on the eligibility criterion in Article 193(2)(e) of the Constitution which is strictly applicable only to the occupation of the office of deputy governor through elections and not by appointment,” continued the petition.
“Unless the court intervenes immediately, Mr Mutungi, who was not lawfully nominated, vetted and approved for appointment as deputy governor, and who is ineligible anyway because of the ongoing criminal proceedings against him, will be unlawfully installed as the deputy governor of Nairobi,” it added.
The case will be mentioned on December 1, 2021.