Nairobi Deputy Governor Anne Kananu will now be sworn in as the county boss after the Supreme Court thwarted efforts by impeached governor Mike Sonk o to delay the exercise.
Ms Kananu will become the first female governor of the capital city. She is allowed to appoint a deputy to help her lead the county government for the remainder of the term.
Mr Sonko wanted the Apex court to order the Committee on Assumption of Office to put on hold its plan of swearing-in Ms Kananu, pending determination of his case against appellate court's decision to disallow his return to office.
But the Supreme Court said it does not have the powers to deal with the issues raised by the ex-governor. This means Mr Sonko has now exhausted the legal mechanisms of returning to the City Hall following the impeachment.
Substantive determination
The five-judge bench chaired by Justice Mohamed Ibrahim said Mr Sonko's application was prematurely before the Apex court since there was no substantive determination (of constitutional question) and judgment of the Court of Appeal.
"Without substantive determination of, and in the absence of a judgment of the Court of Appeal in the appeal pending before it, this application is premature and does not meet the threshold of Article 163 (4)(a) of the Constitution," said the judges.
Article 163(4)(a) of the Constitution provides that "Appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of this Constitution".
The judges termed Mr Sonko's application as incompetent while they upheld the objection raised by the County Assembly and its clerk.
It was noted that the appeal before the Court of Appeal is yet to be heard and determined and is indeed scheduled for arguments on November 22, 2021. The other judges in the bench included Justices Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola and William Ouko.
Mr Sonko rushed to the Supreme Court after the Court of Appeal rejected his application to stop Ms Kananu from assuming office a fortnight ago.
He argued that he stood unfairly and unlawfully deprived of his lawfully contested and won Nairobi gubernatorial elective position unless the court intervened.
The former governor has maintained that his impeachment by the county assembly and upholding of the same by the Senate was illegal and the court should determine whether it was done as required by the law.
In his application at the Supreme Court, Mr Sonko was aggrieved by the Court of Appeals finding that having not been in office for at least ten months, he is effectively no longer Nairobi governor.
Appellate judges Wanjiru Karanja, Jamila Mohamed and Jessie Lesiit ruled that should the Court of Appeal ultimately find that there was a violation of Mr Sonko's political rights, then those violations, since they will be personal to him, can be vindicated by way of an order of damages, or such other order that the court may deem fit.
The court further found that the issue of the swearing in of Ms Kananu was not raised in the High Court and the disputed judgment did not address or determine that issue.
"We note that the issue of the swearing-in of Kananu was not a ground of appeal in Sonko's draft memorandum of appeal. In the draft memorandum of appeal, he disputes the decision of the High Court which failed and/or refused to overturn the impeachment process. We therefore find that there is no nexus between the orders granted by the High Court and the orders sought in the instant application," said the judges.
In urging the court to block the swearing-in of Ms Kananu, Mr Sonko argued that the pending appeal is one that is in the public interest since he was elected by voters in Nairobi County.
He said it is of utmost public interest that the objects of devolution as outlined in Chapter 11 of the Constitution are respected, and that leadership of the county is attained through constitutional means.
The Senate, in its resolution passed on December 17, 2020, voted to remove him from office, leading to filing of two petitions -by Mr Sonko and rights activist Okiya Omtatah -but were dismissed by a three-judge bench of the High Court on June 24, 2021.
The High Court found that the process of impeachment of Mr Sonko fully complied with the constitutional and statutory requirements.
In dismissing the petitions and upholding Mr Sonko's ouster, the three-judge bench of Justices Juma Chitembwe, Wilfrida Okwany and Weldon Korir, said due process was followed and that there was sufficient public participation on both the impeachment motion and Ms Kananu's vetting.
Sonko faced multiple charges including use of abusive language on social media. The court held that the office of the governor needs respect and high standards.
The judges also dismissed claims that the impeachment motion was influenced by President Uhuru Kenyatta and other external forces.
“There is no merit in allegations that the impeachment was engineered by reasons other than those in Article 181 of the Constitution. The impeachment motion complied with the Constitution and the statutory law," said the judges.
They unanimously ruled that the allegations levelled against Mr Sonko, such as abuse of office and gross misconduct, were substantiated to the required standard and were connected to him.
Hence, the court said, the Senate and county assembly cannot be faulted for their decision to impeach him and dismissed claims that senators were biased. Also dismissed were claims that the Senate decision was predetermined.
But in the pending appeal, Mr Sonko contends that the High Court reached an erroneous conclusion as it did not properly interpret the Constitution in relation to the correct processes of impeachment conducted by the County Assembly and the Senate.
He says the High Court failed to properly address the constitutional violations particularised in the petitions and that it was openly biased against him.
Further that the court failed to exercise its powers under Article 165(6) of the Constitution in failing to consider the question of lawful participation of members of the County Assembly in the process of impeachment.
