• Igathe resigned because he said he couldn't please Governor Sonko but was his resignation ever been officially recognised?
• Deputy Governor Ann Kanunu, who had been nominated by Sonko, has been sworn in as Nairobi's third deputy governor.
Image: FILE
Will the real Nairobi deputy governor please stand up?
The dispute over the Nairobi governor's seat, succession and a by-election has been thrown into further disarray after former Deputy Governor Polycarp Igathe asked the court to determine whether his resignation was formalised.
While acknowledging that he resigned in January 2018, Igathe said that the meaning of the county's failure to recognise his resignation should be determined by the court.
In an affidavit, Igathe said his letter of resignation was not acknowledged by the speaker of the Nairobi City County Assembly. The affidavit was dated January 12 and made available on Wednesday.
“The legal effect of the failure to formalise or recognise my resignation and the failure by Nairobi County or any public institution to conduct any legal formalities to conclude my resignation is a matter to be determined by the court,” he said.
Igathe was responding to a case in which a Nairobi voter - Patrick Kiiru - is challenging the Nairobi gubernatorial by-election initially slated for February 18.
Kiiru says the Independent Electoral and Boundaries Commission has no right to call a by-election to fill the vacancy in the office of the governor, especially when there is a deputy governor in place.
A by-election would be a messy affair, with victors holding office for only a short time.
He says Igathe should automatically take over as his resignation was never communicated to the electoral agency.
The case is to be heard on Wednesday before Justice Weldon Korir.
“The impending by-election as gazetted by the Independent Electoral and Boundaries Commission is premature and unconstitutional,” Kiiru said.
The gazette notice was preceded by the impeachment of Mike Sonko as governor but Justice Anthony Mrima has since suspended the notice following a case filed by Sonko.
Igathe ran as Sonko's running mate on the Jubilee Party ticket in the 2017 General Elections.
“I served in the position of Deputy Governor until I formally tendered my resignation by way of letter dated 12 January to the speaker of the Nairobi City County Assembly,” Igathe said.
He said having formally tendered his resignation, he commenced other career engagements away from the public office he held pending all formal responses.
"With regards to the legal steps to be taken to formalise my resignation, I am not aware if the same were conducted,” Igathe said.
Kiiru in his court documents said the resignation of Igathe was never communicated to the IEBC, nor was any gazette notice published announcing a vacancy in the office of the deputy governor.
“Having officially confirmed that it wasn’t aware of the vacancy in the office of the deputy governor, it can only be said that the gazette notice by the IEBC was based purely on hearsay and media reports as opposed to the law,” the voter said.
There being no vacancy in the office of the deputy governor, Igathe ought to have assumed office for the remainder of the governor's term, Kiiru argued.
(Edited by V. Graham)