CONSTITUTIONAL PETITION

Sonko, Waititu eligibility case hearing begins Monday

Justice Nyakundi had last week issued temporary orders baring the IEBC from clearing the two from vying

In Summary
  • Justice Nyakundi had last week issued temporary orders baring the IEBC from clearing the two.
  • The orders were issued following a constitutional petition filed under certificate of urgency by a resident Silvester Kipkemoi Arap through his lawyer Rioba Omboto.
Former Nairobi Governor Mike Sonko in Mombasa on March 30.
Former Nairobi Governor Mike Sonko in Mombasa on March 30.
Image: BRIAN OTIENO

The High Court in Eldoret will Monday start the hearing of a case seeking to stop the IEBC from clearing former governors Mike Sonko and Ferdinand Waititu from vying for elective posts in the August 9 general election.

Justice Nyakundi had last week issued temporary orders baring the IEBC from clearing the two.

The orders were issued following a constitutional petition filed under certificate of urgency by a resident from the region Silvester Kipkemoi Arap through his lawyer Rioba Omboto.

Kipkemoi swore a 36-point affidavit in which he terms the move by Sonko and Waititu to run for elective seats as serious violation of the constitution, noting that the two had been impeached from office for breach of the same constitution.

In the petition, Kipkemoi has listed three respondents including the Attorney General, IEBC and the EACC.

All the respondents including the IEBC have been served and filed their responses.

“We will have the inter-parties hearing on May 16, 2022,” Nyakundi directed.

The petitioner has also listed Sonko, Waititu, the Kenya Human Rights Commission and the Katiba Institute as interested parties.

Laywer Omboto said the matter was extremely urgent and should be heard on priority basis.

He says it had been revealed that Sonko and Waititu who had been impeached under the laws of Kenya and had no pending appeals in court, are vying to be elected as governor for Mombasa and as MP in Kiambu respectively.

“If this court does not intervene timeously, there is a cascading violation of the constitution that impeached persons will contest, and even be elected in the August 9, 2022 general election,” Omboto said.

The lawyer said there wasn’t much time left for the court to act because the IEBC was due to formally clear candidates and shortly thereafter print ballot papers for the elections.

He said unless the matter was certified as urgent, the names of the two would be cleared and printed on ballot papers before the issues raised in the petition are head and determined thereby rendering the petition nugatory, academic and overtaken by events.

Kipkemoi through his lawyer argued Sonko and Waititu who are listed as 1st and 2nd interested parties were impeached by their respective county assemblies and the senate and subsequently removed from office.

“Their attempts to obtain a reprieve from the courts failed. The courts upheld the impeachment for both and there is no pending appeal in any court of competent jurisdiction,” Kipkemoi said.

He cites Chapter Six of the constitution on integrity, the County Governments Act, the Leadership and Integrity Act and the Ethics and Anti-Corruption Commission Act as some of the laws under which Sonko and Waititu do not qualify to vie for elective seats having been impeached.

Justice Nyakundi certified the mater as urgent and ordered that there was compelling sense of urgency for the court to consider the issues raised in the petition given their public interest importance.

“As such the application dated May 6, 2022 is certified as urgent ex-parte in the first instance,” the court order said in part.

The judge said at the crux of the petition is the suitability and eligibility of the persons named in the petition and who are likely and set to present their clearance instruments to the IEBC to exercise their democratic right to seek elective positions.

The judge noted that all the parties listed in the petition had a recognisable stake in the allegations stated in the petition.

The judge directed given the statutory and constitutional timeline of the electoral cycle interim interdict be issued against the IEBC and other respondents.

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