The High Court has declined to temporarily suspend a decision by the Independent Electoral and Boundaries Commission to disqualify former Nairobi Governor Mike Sonko from contesting in the Mombasa Governor’s race in the August 9 polls.
Mr Sonko wanted to be granted the order should the court allow an application by IEBC to have the hearing of his case challenging the electoral body’s decision to disqualify him adjourned.
However, Justice John Mativo, sitting in Mombasa, ruled that it would be dangerous for the court to issue the order at the moment without hearing all the parties on merit as it may interfere with other related ongoing disputes.
“I am alive to the fact that the applicant (Mr Sonko) application is pending before me, several issues stand in the way of stay (suspension orders), it would be prudent for the applicant to surmount them,” said Justice Mativo on Tuesday.
Through lawyer Edwin Mukele, IEBC sought to have the hearing of the case adjourned to allow him attend to a sick relative at a hospital in Nairobi.
However, through his lawyers led by Mr Jared Magolo, the former Governor argued that though he sympathized with the predicament of Mr Mukele and did not oppose adjournment, the court ought to give him the temporary orders.
“Matters of election are very emotional, we are calling for equality, give us a stay,” said Mr Derick Odhiambo, one of Mr Sonko’s lawyers.
At the same time, IEBC has filed a preliminary objection to Mr Sonko’s case saying that the court lacked jurisdiction to hear it.
According to the electoral body, the case by the former Governor goes against the Elections Act as it seeks to circumvent its (IEBC) dispute resolution committee.
IEBC also argues that the issues raised by Mr Sonko are subjudice to another case being heard by a three judge bench seeking to bar him from vying for governor.
Mr Sonko’s lawyers intend to argue that Article 47 of the constitution and Section 7(4) of the Election Act allows exemptions from IEBC’s dispute resolution committee.
Prior to allowing the adjournment sought by Mr Mukele, Justice Mativo had ruled that the preliminary objection by the electoral body would be heard first.
In his application, Mr Sonko wants to have IEBC and its chairperson Wafula Chebukati’s decision (which disqualified him) contained in a media release of June 4 and dated May 17 quashed.
Mr Sonko also wants to have a decision of the electoral body’s County Returning Officer in Mombasa declining to clear him to vie for Mombasa gubernatorial seat also quashed.
The former Governor says that his impeachment proceedings have not been concluded and are currently pending before the Supreme Court.
“There are other connected matters pending in connection with this matter in which the applicant (Mr Sonko) has an interest and in which the office of the Attorney General is acting,” Mr Sonko says in his suit papers.
Mr Sonko says the decision by the electoral body to exclude him from vying for Mombasa Governor’s seat is premature, prejudicial, oppressive and has already caused irredeemable damage and untold suffering to him.
Thus, Mr Sonko wants his application heard and determined expeditiously and a stay of IEBC and its chairperson’s decision be granted pending hearing and determination of the application.
“This is a matter of significant public interest consideration and policy and it is also in the interest of justice that it is heard and determined expeditiously given the tight electoral timelines,” says Mr Sonko.
According to Mr Sonko, the decision of IEBC and its officials is erroneous and discriminatory since there are other candidates who were impeached or convicted for 66 years and have active appeals before court but they have been cleared to vie yet he has been disqualified even before presenting his credentials.
Mr Sonko also wants to have the electoral body officials compelled to receive his nomination papers and clear him to vie pending hearing and determination of the application inter-parties.
He says that the respondents’ decisions are not the exercise of their own discretion but the result of unlawful collusion and pressure from third parties.
“The second respondent’s (Mr Chebukati) decisions are in conflict with powers and requirements of his office to act independently, impartially and without fear or favour,” argues Mr Sonko.
He accuses the electoral body and its chairperson of divesting their office of its constitutional duties and responsibilities by illegally denying him a chance to vie for Governor in Mombasa.
Mr Sonko also argues that the decision which cited impeachment as a reason for denial of clearance to his candidature was made prior his submission of his credentials to vie contrary to principles of fair hearing, fair administration action and constitutional basic rights.
The case will be heard on Friday.