Governors who were re-elected in the August 9 polls after losing their seats in 2017 would not be eligible to seek another term, legal experts have said.
They argue that the county bosses who bounced back into office after five years in the cold can only serve for one more term.
The experts told the Nation that this interpretation is based on Article 180 of the constitution on the term limits of county bosses, a matter that has been a subject of debate by many.
While some lawyers have often argued that the two terms must be served consecutively, others have been of the opinion that even serving two different times is enough to disqualify one from contesting again.
“It does not have to be sequential. They can serve one term, go and come back and it will still count as two terms. Even if it is interrupted, even when you come back, that will be defined as your last and final term as a governor,” Mr Onderi N.B, an advocate of the High Court said.
Affected governors are Ken Lusaka of Bungoma, Benjamin Cheboi of Baringo, Joshua Irungu of Laikipia, Julius Malombe of Kitui, West Pokot’s Simon Kachapin, Garissa’s Nathif Jama, Wajir’s Ahmed Abdullahi Jiir and Issa Timamy of Lamu.
Lawyer Mwaure wa Kabata, said: “Article 180 of the constitution talks about a person not holding the office of a governor for more than two terms. My understanding of this law is that it does not say consecutive, it just says two terms.”
“If, for instance, former Nairobi governor Mike Sonko had vied in Mombasa and won, it would be deemed that he had served for two terms,” he said.
The arguments by the lawyers also come in the wake of concerns over the fate of county bosses who sought fresh mandates in different counties, like former Nairobi governor Evans Kidero.
While the law caps the term limit at two – five years each – experts have often differed on interpretation.
Dr Mutakha Kangu, who chaired the Devolution task force for the 2010 constitution, said that those who have served for one term in one county are eligible for two terms elsewhere.
“Governor term limits are for a specific county. Former Kakamega governor Wycliffe Oparanya who would have served his two terms, for instance, can shift to Busia and run,” Dr Kangu told Nation in an earlier interview.
But other legal experts like Dr Bobby Mkangi, a constitutional lawyer and a former member of the Committee of Experts which drafted the constitution, argued that the term limits as defined in law are clear.
“As long as you have served as a governor, no matter where your launching pad was, say Nairobi or wherever – you are only entitled to a maximum of two terms of five years each in office,” Dr Mkangi said.
He argued that sentiments by other experts that the two terms must only be served consecutively for it to count is a misinterpretation of the law.
According to Article 180 (7) (a) of the constitution, a person shall not hold office as a governor for more than two terms.
“The two terms do not have to be conservative. Whether you served for one term and then went away for 15 years and came back, the second term will still count as your last term in office. Even if it was a disjointed term, it will still be counted as two terms, just like it is the case with that of the president,” Dr Mkangi said.
Mr Eric Mutua, the former president of the Law Society of Kenya, is also of the same view, saying that the interpretation of the term limits has often times been misrepresented.
“I think the wording of the constitution is clear that the term limit is two consisting of five years each. It does not have to be consecutive as long as you have served the two terms. You do not need any other interpretation,” Mr Mutua said.
“I also do not think it is tenable to serve in one county and then move to another and serve for two more terms. The rationale is that being a governor is a form of employment and therefore it will beat logic and that rationale that one serves in this particular county and then move to another county to seek a fresh mandate of two more terms,” he added.
In Baringo, Mr Cheboi defeated incumbent Stanley Kiptis. In Laikipia, Mr Irungu beat Mr Ndiritu Muriithi of Jubilee.
In Kitui, Mr Malombe beat his main rival and former Kitui senator David Musila. In West Pokot, Mr Kachapin defeated Prof John Lonyangapuo. In Former Garissa Governor Nathif Jama of ODM defeated the incumbent Ali Korane of Jubilee. Mr Jama polled 69,342 votes against Korane's 26,148.
Ex-Lamu county boss Timamy of Amani National Congress (ANC) recaptured the seat by beating incumbent Fahim Twaha of Jubilee.
