Former Nairobi Governor Mike Sonko Friday June 24 suffered a setback after the High Court in Mombasa declined to issue four interim orders among them restraining the electoral agency from publishing in the Kenya Gazette candidates for the position of Governor Mombasa county.
In declining to issue the orders on Friday evening, Justice Olga Sewe ruled that the orders will have far reaching implications and will mean the court will have made a decision without hearing the respondents.
“Justice requires the application and the petition be canvassed expeditiously… I decline to issue the orders pending a response by the respondents,” ruled Justice Sewe.
Justice Sewe further directed that the case file be forwarded to Chief Justice Martha Koome to empanel a bench of judges to hear the case as it raises substantial issues of law.
Mr Sonko also wanted the court to issue an order restraining the Independent Electoral and Boundaries Commission (IEBC) from printing ballot papers in respect of the candidates for the Governor’s position in Mombasa.
He also sought for an order restraining Wiper party from nominating any other candidate for the of Governor Mombasa county other than himself.
Mr Sonko also wanted an order issued compelling IEBC to furnish the court with copies of degree certificates as submitted by county returning officers in respect of each candidate across the country for the position of Governor for the General Election for the purposes of the case.
Through his lawyers, Mr Sonko argued that the electoral agency is in the process of publishing in the Kenya Gazette names of candidates to contest for the seat of Mombasa Governor, thereafter printing of the ballot papers shall be undertaken without his name.
Lawyer Wilfred Nyamu said that the threat of the electoral agency printing ballot papers is real since it is known that once the nomination process is over, it is presumed that printing of ballot papers will happen.
Mr Nyamu told Justice Sewe that people of Mombasa ought to be allowed to freely choose their representatives.
“It is in the interest of Mombasa people to have the petitioner on the ballot unless lawfully restrained,” said Mr Nyamu.
He said that the order in which they want IEBC to furnish the court with copies of degree certificates submitted to county retuning officers in respect of each candidate across the country for the position of Governor is meant to determine whether there was discrimination against Mr Sonko.
The court was further told that it has jurisdiction to grant the interim orders being sought by Sonko pending hearing and determination of his application.
Through lawyer Edwin Mukele, the electoral agency told the court that people of Mombasa have a right to have elected representatives and that their interest is more than that of Mr Sonko.
“That is why, Wiper party was allowed to nominate a candidate, the interest of the petitioner does not override those of the people of Mombasa,” said Mr Mukele.
Mr Mukele said that if the conservatory orders are granted, they will be prejudicial to the respondents noting that what is being challenged does not relate to other Governor candidates but that of Mombasa.
According to IEBC, nothing had been tabled in court to show proof of printing of ballot papers or gazettement of the candidates and that if there would be such exercise, the public would be notified.
“If the orders sought are granted, they have the effect of impacting on those who are not in the proceedings,” argued Mr Mukele.
Mr Mukele sought to be granted ten days to file a response to Mr Sonko’s case and urged the court to restrain itself from granting ‘such drastic’ orders.
In his main petition, Mr Sonko wants a decision by the electoral agency’s Mombasa county retuning officer Swalha Ibrahim and its Dispute Resolution Committee disqualifying him as a candidate for position of Governor Mombasa quashed.
Mr Sonko also wants an order issued against Wiper Democratic Movement party from nominating any other candidate for the position other than himself.
He says that the Dispute Resolution Committee (DRC), by upholding the decision of Ms Ibrahim that his degree and its certified copy were issued out of time while it was admitted that he had appeared before the county retuning officer within the stipulated time violated the constitution.
Mr Sonko says that failure by the county returning officer to receive his original degree certificate and its certified copy was intentional created to delay its submission past the timelines indicated.
Justice Sewe has ordered the respondents to file their responses to Mr Sonko’s application by Tuesday next week.