The High Court on Monday dismissed a case by former Nairobi governor Mike Sonko challenging revocation of his clearance certificate to contest the Mombasa gubernatorial seat.
Justice John Onyiego dismissed the application by Mr Sonko saying it lacks merit and the court did not have jurisdiction to determine the dispute.
The judge said that the mandate to hear and determine pre-election disputes is with the Independent Electoral and Boundaries Commission (IEBC) which has powers conferred to it by the Constitution and the Elections Act.
Justice Onyiego, sitting in Mombasa, said that the High Court can only be approached after exhaustion of the dispute resolution mechanisms by the electoral agency.
He further recalled and set aside an order which had exempted Mr Sonko from taking his dispute to the IEBC’s Dispute Resolution Committee (DRC) saying it (order) had been issued based on a Gazette Notice issued in January presented before court.
“The applicant pleaded exemption that the mandate of the DRC had expired, he was exempted on the basis that it (DRC) was not in place,” said Justice Onyiego.
Justice Onyiego noted that during hearing of the case, IEBC through lawyer Edwin Mukele told the court that the order of exemption was issued through trickery as there was another Gazette Notice issued in June and that there was no rebuttal of the submission.
“A person who obtains an order through non-disclosure or concealment of material facts ought not to enjoy it, there is no doubt that the applicant cannot enjoy orders of his own wrongdoing,” said Justice Onyiego.
Through his team of lawyers led by Mr Ochieng Oginga, Mr Sonko who wanted his application allowed told the court that the revocation of his clearance was done contrary to the Fair Administrative Act and the Constitution.
Mr Oginga argued that the decision was made in an opaque manner as there was no notice issued before the revocation of the clearance, nor was an opportunity to be heard given.
“The decision to revoke the registration (clearance) was irrational, unlawful and unreasonable, the county returning officer has no power to cancel the registration of a candidate,” said Mr Oginga.
In his application, Mr Sonko wants an order issued quashing the decision revoking his registration as a candidate for the Mombasa county gubernatorial elections.
Mr Sonko argues that the revocation of his clearance was done notwithstanding county returning officer Ms Swalha Ibrahim and IEBC having knowledge of the existence of both his review application at the Supreme Court and a case at the East African Court of Justice.
“Despite several correspondences seeking the withdrawal of the letter (of revocation) Ms Ibrahim with the advice of IEBC has neither withdrawn the revocation or gazetted Mr Sonko as a candidate for the elections,” the suit documents state in part.
Mr Sonko says that he has no means of enjoying his political rights under the constitution to contest for governor Mombasa as directed by court unless ther revocation of his registration as a candidate is quashed.
On its part, the electoral agency wanted the application by Mr Sonko dismissed arguing that he ought to have referred his complaint to its DRC which is still in session.
Mr Mukele told the court that the DRC was the right forum to adjudicate the complaint by the former city county governor.
“The IEBC DRC is in session, the matter will be referred there for resolution,” Mr Mukele told the court during the hearing of the case.
Apart from IEBC, Mr Sonko had sued Ms Ibrahim and the Wiper Democratic Movement party while the Ethics and Anti-Corruption Commission (EACC) was an interested party in the case.
The electoral agency also argued that Mr Sonko had not sought for any order in his application to have the DRC constituted.
“It cannot be now that the applicant feigns ignorance on the paths he intends to follow, the law does not provide time limits for the resolution of disputes before the declaration of results,” said Mr Mukele.
He said that it was not in dispute that the decision to revoke the clearance of Mr Sonko was anchored on the decision of the Supreme Court and that Ms Ibrahim acted within the law in revoking the certificate of clearance.
“Based on that finding by the Supreme Court, the applicant (Mr Sonko) was not qualified. The county returning officer and IEBC were complying with the decision of the Supreme Court,” said Mr Mukele.
The electoral agency argued that even if the application by Mr Sonko was to be allowed, it would not be effective noting that the elections have been scheduled for Tuesday and ballot boxes for Mombasa are in the country.
It further argues that the court could not vary or alter the elections date noting it will be precluded from issuing the orders without hearing from other parties.
“Allowing the application will have far reaching consequences, the interest of the people of Mombasa are paramount to those of the applicant,” said Mr Mukele.
On its part, EACC through lawyer Phillip Kagucia, told the court that what the IEBC did (revoking Mr Sonko’s clearance) was in compliance with the Supreme Court’s decision.
“Once a candidate is impeached, he remains so until the impeachment is set aside,” said Mr Kagucia.
