Case on Sonko, Waititu election eligibility referred to CJ Koome

Former Nairobi Governor Mike Sonko and Fomer Kiambu Governor Ferdinand Waititu outside the Anti-corruption at the Milimani Law Courts Nairobi on Tuesday, November 16, 2021 when they faced corruption charges.

Photo credit: Dennis Onsongo | Nation Media Group

A case on whether impeached governors can run for public office has been referred to Chief Justice Martha Koome for judicial direction.

Eldoret High Court Judge Reuben Nyakundi cited similar lawsuits on the same subject in different courts in Nairobi and Mombasa following arguments made by lawyers for various parties.

The petitions refer to attempts by former governors Mike Sonko and Ferdinand Waititu to run for public office in this year’s General Election. Both were impeached and removed from office.

“Due to the urgency and the nature of this petition. I recommend it to be mentioned before the CJ for further directions and perhaps in her wisdom she might deem it fit to consolidate the Eldoret petition with the other similar petitions or to decide if it should be heard on its own”, Justice Nyakundi noted.

Last week, the same Court issued temporary orders barring the Independent Electoral and Boundaries Commission (IEBC) from clearing the two for election in August.

The constitutional petition in the Eldoret High Court was filed on May 6 by lawyer Rioba Omboto on behalf of a voter identified as Silvester Kipkemoi Arap.

The petitioner is of the opinion that Sonko and Waititu who were impeached under the laws of Kenya should not be allowed to vie for the Mombasa governor and Kiambu parliamentary seats, respectively.

Wiper Leader Stephen Kalonzo Musyoka on April 21, officially handed the Wiper party to Sonko to vie for the Mombasa Governor’s seat.

But Mr Kipkemoi argued that Sonko and Waititu who are listed as 1st and 2nd interested parties were impeached by their respective county assemblies and the Senate and subsequently removed from office.

He cites Chapter Six of the Constitution on integrity, the County Governments Act, the Leadership and Integrity Act and the Ethics and Anti-Corruption Commission Act as some of the laws under which Sonko and Waititu do not qualify to vie for elective seats having been impeached.

He listed the Attorney-General, the IEBC and the Ethics and Anti-Corruption Commission (EACC) as respondents, while Mr Sonko, Mr Waititu, the Kenya Human Rights Commission and the Katiba Institute are cited as interested parties.

Justice Nyakundi issued the temporary orders on May 9 following the petition that was filed under a certificate of urgency. Lawyers had told the court that the matter was extremely urgent and should be heard on priority basis.

Through his sworn affidavit, the petitioner termed the move by Sonko and Waititu to run for elective seats as a severe violation of the Constitution, bearing in mind that the two had been impeached from the same office for breach of the Constitution in relation to integrity and economical crimes.

Lawyers representing parties in the case last week cited similar petitions filed in Nairobi and Eldoret courts, with CJ Koome now expected to provide directions on whether the cases should be consolidated.

The Eldoret High Court convened a hearing where lawyers representing the various parties were given an opportunity to argue whether any outstanding procedural issues existed that could stand in the way of hearing the petition.

The lawyers, in their submissions, cited petitions in a Mombasa court and in the Constitutional and Human Rights Division in the High Court in Nairobi. The two petitions are yet to be heard and determined.

The lawyers expressed fears that there could be a mistrial resulting from conflicting decisions and this led to the proposal to have the Eldoret petition consolidated with the Mombasa and Nairobi ones.

It also emerged that parties cited in the Eldoret petition had not been served.

Referring the matter to CJ Koome on Monday, Justice Nyakundu said three petitions filed in three different courts could result in contradictory rulings.

“The multiplicity of suits on the same subject matter as evidenced by the three petitions filed in three different locations are likely to yield conflicting orders and judgments,” Justice Nyakundi stated.

“Wise judicial administration is required to weigh in on this issue to compulsorily consolidate the petitions to facilitate the just, expeditious, proportionate and affordable resolution of the cause of action. 

On Monday, lawyers representing the petitioner led by Mr Stephen Ombego holding brief for Rioba Omboto said despite the petition filed in Eldoret being different, they agreed with the move by Justice Nyakundi to refer the case to the CJ.

Mr Ombego said his client’s case was mainly focusing on legality of the duo to vie for elective office after their impeachment, but since it had some similarities with cases filed in other courts about the same politicians, he was in agreement with the court’s decision to refer the case to CJ. 

“Though our petition greatly revolves around the eligibility of impeached public officers to seek elective seats, we are in agreement with the court's decision,” Mr Ombego said.

CJ Koome is expected to expedite the matter by consolidating the petitions and setting up a bench to determine it.

Even as the political destiny previously impeached politicians remains at the mercy of the decision and direction, already the Director of Public Prosecutions (DPP) Noordin Haji has vowed to block such politicians from contesting in the August polls.

Mr Haji has vowed that his office will not clear such politicians to contest in the polls.

The DPP has been emphatic that once impeached, you are unfit to be custodian of public office and cannot therefore seek to be elected in any county in the country.

“You cannot jump from one county to another after an impeachment and start campaigning to be elected. My office will not allow such impunity but we will fight it even if we lose it,” said Haji during an interview on Spice FM.

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