• On Thursday, the commission, through lawyer Mahamud Jabane, said according to the law, gubernatorial elections must be held 60 days after the speaker assumes office.
• Jabane asked the court what the order would mean for acting governor Benson Mutura, who took office temporarily until a new county boss is in place.
There will be a constitutional crisis in Nairobi county if the governor's by-election is not held on February 18, the Independent and Elections Boundaries Commission has said.
On Thursday, the commission through lawyer Mahamud Jabane said, according to the law, gubernatorial elections must be held 60 days after the speaker assumes office.
In the case, former Nairobi Governor Mike Sonko moved to court seeking to stop the by-election.
Judge Antony Mrima issued orders last week suspending the Gazette Notice by the IEBC calling for a by-election pending hearing of the case.
Jabane asked the court what the order would mean for acting governor Benson Mutura, who took office temporarily until a new county boss is in place.
“Should this 60-day deadline pass what happens to the speaker's holding of that position?” the lawyer posed.
“Does Mutura cease holding that position? What will be the net effect? My lord, those are questions which must weigh heavily on the court when it determines these issues.”
He argued that the net effect of the orders suspending the elections would be a delay or postponement of the elections, which would have a direct breach of constitutional timelines.
The court further heard that the 60-day timeline is little for the commission to prepare for the by-election.
“In this time, the commission is required to do preparations and planning including procurement of both strategic and non-strategic materials, and hiring, training and deployment of elections officers, security personnel and other logistics which take a long time,” Jabane said.
The lawyer also argued that within 60 days they would have to procure and print ballot papers while following the laws relating to procurement.
“There are certain timelines within which you must do the procurement, otherwise you run afoul of the Public Procurement and Asset Disposal Act,” he said.
According to the commission, under Article 185(2) of the Constitution an election shall be held within 60 days after the speaker assumes the office of the governor
Jabane said the only occasion or reason these elections should not be held is if they are postponed by the IEBC. He said it is the only commission with the power to postpone such by-elections.
“The power to postpone elections is only granted to the IEBC and no other body which has the jurisdiction to postpone elections,” he said.
The lawyer said according to the Elections Act, the commission may postpone an election only in instances where they believe there is a serious breach of peace likely to occur and where it is impossible to conduct the elections as a result of natural disaster or other emergencies.
Jabane opposed an application by the Nairobi county leadership seeking to have the matter heard by a three-judge bench.
The county wants the court to consolidate all cases relating to Nairobi county, so they can be heard by a bench.
The commission argues that the move will only cost them time, adding that the 60 days constitutional timeline will elapse.
Former Governor Mike Sonko’s lawyers also opposed the bid to empanel a bench, saying it would waste judicial time.
Lawyer Harrison Kinyanjui told the court that if it allows the application, then they will be forced to have all those other parties in the eight cases sitting at the table.
“This particular applicant is asking you to exercise your discretion to consolidate this petition with other petitions in other divisions, for instance ELRC is an employment and labour relations court petition 35/2020 which you are prohibited from venturing into it,” Kinyanjui said.
Lawyer Wilfred Nyamu opposed the application, saying it was a delay tactic aimed at making Mutura stay in office.
Kinyanjui alleged that the application was asking for an open-ended stay to allow Benson Mutura to stay in office.
Judge Mrima will deliver a ruling on Tuesday next week.