SET ASIDE ORDERS

DG Nyoro wants orders barring him from reshuffling executive set aside

There is a need to avoid two courts of co-equal jurisdiction making conflicting decisions

In Summary

• Lawyer Kibe Mungai says the court lacks the jurisdiction to hear the matter because there are constitutional issues that need to be determined before the matter proceeds

• Nyoro claims that public interest is being prejudiced more by having those orders in force

Deputy Governor Kiambu County James Nyoro wants the orders barring him from reshuffling the county executives set aside.

filed an application at the Employment court seeking to set aside orders barring him from reshuffling the County Executive.

Nyoro, through lawyer Kibe Mungai, told Labour and Employment Judge Onesmus Makau that the orders should be set aside pending the hearing and determination of two petitions before the Constitutional and Human Rights Division of the High Court.

He said there is a need to avoid two courts of co-equal jurisdiction making conflicting decisions.

“Nyoro is acting for the interest of the public and since Governor Waititu has been barred from entering his office, what will happen if there are services required from that office?” Mungai asked.

He said the court lacks the jurisdiction to hear that matter because there are constitutional issues that need to be determined before the matter proceeds.

Mungai said that it is only a constitutional court that can interpret some sections of the law.

“I believe as the acting governor of Kiambu County that I require sufficient legal capacity and scope to discharge my functions to ensure smooth service delivery, efficient governance and accountable administration,” Nyoro said.

He is convinced that this would not be possible if, on basis of contested interpretation of the law, the courts decide to issue orders to hamstring the discharge of those functions.

“There were no grounds whatsoever to grant conservatory orders before inter-partes hearing given that no evidence of proximate or imminent illegal action or has been tendered by Mariona Njeri a voter,”  Kibe argued.

He said the conservatory orders made on September 25, 2019, should be set aside to ensure objective and fair inter-partes hearing.

Nyoro claims that public interest is being prejudiced more by having those orders in force yet there is no prejudice that the petitioner stands to suffer if those orders were discharge.

He said that since the questions on the constitutionality and interpretation of section 32(4) and (5)of the County Governments Act,2012  and Article 179(5) of the Constitution is pending before the High Court, there are no justifiable reasons to tie the hands of the acting Governor and prejudice public interest.

Njeri, through lawyer Nelson Masaviru, said that her petition shows the illegality of the person purporting to act as deputy governor of Kiambu.

She accuses Nyoro of violating the county government rules and regulations by nominating, appointing and dismissing county officers as those functions are meant for the governor.

Masaviru submitted, “By looking at the affidavits of the Deputy Governor, nothing new has been tabled to warrant the court to vary its orders.” 

A ruling on the application is due on October 18.