•However standing orders 51 (2) also reads that despite the above, a notice of a special motion may not be withdrawn except with leave of the county assembly.
•At the same time, Governor Sonko had condemned the manner in which Majority Whip Paul Kados raised complaints on the three Jubilee MCAs who had been summoned by the party last week on Friday.
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Despite facing an impeachment, Nairobi Governor Mike Sonko has demonstrated he will not go down without a fight.
The county boss has now accused County Assembly Speaker Benson Mutura of breaching sub judice rule and contempt of court regarding the ELRC Petition 35 of 2020.
Through his lawyer Harrison Kinyanjui on November 27, Sonko said none of the grounds presented by Minority Leader Michael Ogada on impeachment has been particularized terming them as naked allegations.
Sonko claimed that Mutura proceeded to unlawfully invoke the powers of the Speaker’s office to a matter still in court.
“By purporting to process a fresh impeachment motion against Sonko while these proceedings are pending, you have committed an act of international disrespect to the proceedings in breach of the high court Organization and Administration Act 2015,” he said.
The Speaker had communicated that failure to observe timelines led to the withdrawal of Sonko’s first impeachment notice of motion giving way for a new impeachment process to start.
Mutura said that a motion for removal of the Governor from office is a special motion in accordance with Nairobi City County Assembly Standing Order 49.
Standing Order 49 (3) provides that If a proposer of a special motion fails to observe the timelines prescribed, such a notice of motion shall be deemed to have been withdrawn and shall not be moved in the same session, except with concept of the speaker.
But In his letter, lawyer Kinyanjui says that the petition is pending determination and constitutes a live proceeding within ascribed by the Standing Orders 94 (3) (c).
The standing order states that civil proceedings shall be deemed to be active when arrangements for hearing, such as setting down a case for trial, have been made until the proceedings are ended by judgment or discontinue.
“Our client is the petitioner in the said Nairobi HC ELRC Petition 35 of 2020 and not yourselves. The matter is still pending before the court and you are aware of that and that you are a respondent in the above-cited proceedings," he said.
Kinyanjui also noted that on October 23, 2020, Justice Bryam Oganya dismissed a petition by the respondent paving the way for the determination of the said petition.
Ongaya extended the interim orders he had earlier issued in March, to a further date when the case will be mentioned which is on December 3, 2020.
In March, he had temporarily stopped the impeachment process until due process was followed that the county assembly adheres to standing orders 67 and 72 which had to do with the substantive clerk verification of the signatures collected.
Going further, Speaker Mutura has also been accused of having acted contrary to Standing Orders which constitutes a breach of his oath of the speaker’s office.
Lawyer Kinyanjui said Mutura failed to invoke standing order 51 (3) (a) that highlights the Speaker can turn down a notice of motion which infringes or is likely to infringe any standing orders.
“ You(Speaker) expressly failed to invoke standing order 51 (3) (a) aware that such a motion by Hon. Michael Ogada stood in breach of the sub judice rule, therefore was wholly inadmissible,” he said.
Kinyanjui also highlighted that the standing orders 51 (1) states that only a member who gave the notice of motion can withdraw it, therefore, Speaker has no unilateral power to withdraw the motion that had been mounted by MCA Imwatok on February 20, 2020.
However standing orders 51 (2) also reads that despite the above, a notice of a special motion may not be withdrawn except with leave of the county assembly.
At the same time, Governor Sonko had condemned the manner in which Majority Whip Paul Kados raised complaints on the three Jubilee MCAs who had been summoned by the party last week on Friday.