The Wiper Democratic Movement party has lodged a complaint at the electoral commission's Dispute Resolution Committee protesting the decision to bar former Nairobi governor Mike Sonko from vying for Mombasa governorship over claims that he is unsuitable to hold a public office.
Mr Sonko has also filed a separate case challenging his disqualification. He appeared before the committee at the Milimani law courts alongside the Wiper Party leader Kalonzo Musyoka.
The Independent Electoral and Boundaries Commission (IEBC) failed to clear Mr Sonko over failure to present his original Degree Certificate, certified copy of the Degree Certificate and breach of Article 75 of the Constitution.
In the complaint filed by Wiper, the party contends that the reason for refusal to clear Mr Sonko on account of Breach of Chapter 6 of the Constitution is a matter on appeal at the Supreme Court.
"There was no legal basis for the returning officer to reject or refuse to consider the nomination application of Mr Sonko or refuse to clear him as a candidate for gubernatorial elections scheduled for August 9, 2022," says the party.
It says it is alive to the communication by the IEBC that all candidates with an active appeal pending in Court was to be cleared by its Returning Officers.
That further, the party is aware that it is against this backdrop that Sirisia MP John Waluke was cleared to contest for the position of Member of Parliament though he has pending criminal case.
"We contend that the Mombasa County Returning Officer and by extension the IEBC is applying double standards in its decision to refuse to clear Mr Sonko," it says.
It wants the tribunal to reverse decision of the IEBC and make a declaratory order do that the returning officer in failing to treat and handle Mr Sonko's clearance as it did with Mr Waluke’s clearance was violation of the party and Mr Sonko's rights to Fair Administrative Action.
It also wants a declaratory order that the governorship nominee presented all relevant documents sufficient to enable the IEBC officer to clear him on June 7, 2022.
On his part, Mr Sonko says the decision by the IEBC Mombasa County Returning officer, Swalhah Ibrahim, to disqualify him from the race is erroneous.
In the documents Mr Sonko has denied claims by the IEBC that he is ineligible because he was impeached from office of Nairobi county government as the governor on alleged gross misconduct.
He states that the decision to bar him on grounds of impeachment was unfair as Sonko has a pending appeal at the Supreme Court over the same.
"The complainant was allegedly disqualified on the grounds of breach of Article 75 of the constitution yet Article 99(3) and Article 193(3) of the constitution specifically provides that a person is not disqualified unless all possibility of appeal or review of the relevant decision has been exhausted, "the complaint states.
Mr Sonko further wants the committee to issue orders to have him cleared to contest for the seat as the IEBC’s Mombasa county returning officer rejected his nomination papers without granting him a hearing.
He further says that the returning officer is in contempt of court, saying that he was going against the orders of a three-judge bench which quashed the commission's chair decision to block him from being cleared.
On June 7, 2022 the returning officer disqualified Mr Sonko from the race on grounds he was impeached and failed to bring his original certified degree and stamped Ethics and Anti-Corruption Commission (EACC) clearance documents.
The officer also said a decision by a High court three-judge bench to quash IEBC from disqualifying Sonko from vying, “did not order IEBC to clear Mr Sonko to vie for Mombasa Governor seat."
The decision of the court (three-judge bench) had quashed what the IEBC chairman had said but did not order the IEBC to clear Sonko, the IEBC officer argued.