High Court Judge Hedwig Ong'undi has said Judiciary cannot direct the Interior CS Kithure Kindiki on who to arrest following the 'Monday public holiday' declaration by Azimio leader Raila Odinga.
The judge said when the procedure for declaring holidays is not followed, then the Interior CS and the Inspector General of police would know what to do.
"It is not for this court to direct these two senior government officers on their mandate or on who to arrest and who not to arrest," Ong'undi said.
"We have a principle known as separation of powers."
The judge issued the brief ruling after allowing former Nairobi governor Mike Sonko to amend his petition in which he has sued Raila and his former running mate Martha Karua and others.
Sonko in the petition has claimed that the 'unlawful public demonstrations' witnessed on Monday last week are aimed at unconstitutionally removing from office a lawfully elected president.
He argues that the demonstrations are disguised as 'economic protesters' yet they are 'bitter expressions of disaffection at Raila’s loss in the August 9, 2022, presidential election.
Sonko in his amended petition had asked the court to have CS Interior issue directions to the IG to assist in the arrest of Raila and other Azimio leaders for announcing a public holiday that has not been gazetted.
Also sought was an order restraining Raila, Kalonzo Musyoka, Jeremiah Kioni, Karua, Wamalwa and members of the Azimio from inciting or promoting any unlawful conduct or incitement of public gatherings.
Sonko through lawyer Harrisson Kinyanjui had further asked the court to intervene and stop them from interfering with public services like transport by burning tyres on highways and obstructing or blocking any entrances.
But Justice Ong’undi declined to grant the orders sought.
She said Section 5 of the public order act clearly sets out regulations for public meetings and processions.
The regulating officer she said must be notified and given all details of the procession.
The act defines the regulating officer as the officer in charge of a police station in areas where the meeting is to be made.
She emphasised that the act prohibits possession of offensive weapons at public meetings and that enforcement of these provisions falls within the docket of the security enforcement officers.
She said it is the duty of the regulating officers and their seniors to ensure compliance with the law set out to avoid infringement of the rights of Kenyans.
“It would therefore not be proper for these courts to appear to be setting out new regulations and policies which are not within its docket. At this stage, I do not find the prayer for conservatory orders to be merited. Let the officers concerned carry out their lawful mandate. This application is declined,” she said.
Once the Judge was done with the ruling, Counsel Kinyanjui proceeded to state that "Your honor it is as if you are afraid of issuing the orders sought."
The Judge, however, advised the counsel to challenge her decision in the provided legal means if he is aggrieved.
The application by Sonko was based on various grounds. He told the court the call for mass action countrywide has caused a lot of disruptions affecting a number of people not participating in the demonstrations.
He submitted that a number of businesses, schools and properties have been affected and that every Kenyan has a right to protection of the law, which the court should uphold.
Sonko stressed that there are other dates slated for mass action and Kenyans will continue to suffer.
The former governor said the bitter political expressions are evidenced by how Raila has encouraged and permitted the chants of “Ruto must go” during what he terms ‘unlawful public gatherings'
Raila called for the protests to exert pressure on the government to address their concerns on the high cost of living and opening of IEBC servers claiming his victory was stolen in the 2022 general election.
The main case will proceed on April 4.
