- The High Court in Eldoret has issued interim orders barring the IEBC from clearing Sonko and Waititu from vying for elective posts in the August polls.
- Justice Nyakundi issued temporary orders last week following a constitutional petition filed under certificate of urgency.
Image: MATHEWS NDANYI
The case on whether impeached governors can be allowed to vie will be determined by a bench formed by Chief Justice Martha Koome.
Eldoret High Court judge Reuben Nyakundi on Monday directed the matter be taken before the CJ for further directions considering there are almost similar matters filed at other courts in Nairobi and Mombasa.
“The petition should be mentioned before the CJ for further directions on whether it should be consolidated with the other almost similar petitions or if it should be heard on its own,” Justice Nyakundi said.
He has issued interim orders barring IEBC from clearing former governor Mike Sonko (Nairobi) and Ferdinand Waititu (Kiambu) from vying for elective posts in the August 9 general election.
Justice Nyakundi issued the temporary orders last week following a constitutional petition filed under certificate of urgency by a resident of the region, Silvester Kipkemoi Arap, through Rioba Omboto law firm.
Kipkemoi swore a lengthy affidavit in which he terms the move by Sonko and Waititu to run for elective seats as serious violation of the Constitution.
He said the two had been impeached from office for breach of the same Constitution.
On Monday advocate Stephen Ombego from Rioba Omboto law firm said, although the Petition No 10 filed in Eldoret was different, they agreed with the court’s decision to refer the case to the CJ.
“Our case mainly focuses on impeached public officers and their eligibility to vie for any elective office," Ombego said.
However, he said the CJ was competent enough to give relevant direction in the petition as directed by Justice Nyakundi.
In the petition Kipkemoi has listed three respondents: the Attorney General, IEBC and the EACC.
He has also listed Sonko, Waititu, the Kenya Human Rights Commission and Katiba Institute as interested parties.
Omboto had told the court last week that the matter was extremely urgent and should be heard on priority basis.
He said it had been revealed that Sonko and Waititu, who had both 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 ...,” Omboto said.
He further said there wasn’t much time left for the court to act because the IEBC was due to formally clear candidates soon and shortly thereafter print ballot papers for the election.
Omboto said unless the matter was certified as urgent, the names of the two would be cleared and printed on ballot papers.
He said this would happen before the issues raised in the petition are heard and determined thereby rendering the petition nugatory, academic and overtaken by events.
Kipkemoi, through his lawyer, said Sonko and Waititu, who are listed as first and second 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 said Sonko and Waititu do not qualify to vie for elective seats having been impeached in accordance with chapter six of the Constitution on integrity, County Governments Act, Leadership and Integrity Act and the EACC Act.
Justice Nyakundi had also 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.
The judge said at the heart of the petition is the suitability and eligibility of the persons named in the petition and who are likely to present their clearance instruments to the IEBC to exercise their democratic right to seek elective positions.
Nyakundi said all the parties listed in the petition had a recognisable stake in the allegations stated in the petition.
He directed that given the statutory and constitutional timeline of the electoral cycle, interim interdict be issued against the IEBC and other respondents.
(edited by Amol Awuor)