Judge opts out of cases involving Nairobi county leadership

A High Court judge, who stopped the Electoral Commission from conducting the Nairobi gubernatorial by-election and allowed the county assembly to vet deputy governor Anne Kananu, has recused himself from all cases touching on the governorship of Nairobi County.

Justice Anthony Mrima disqualified himself from handling the ten petitions that have been filed by different individuals and rights' groups challenging the nomination of Ms Kananu as the deputy governor and her ascension into the office of the governor.

The judge noted that his decision to allow vetting of Ms Kananu sparked mixed reactions and that the whole matter on the leadership of the Nairobi City County has elicited enormous public interest.

One of the reactions after the delivery of the ruling in the consolidated petition was the filing of a complaint at the Judicial Service Commission (JSC) on the grounds that the court is biased.

"The filing of complaint per se does not preclude a Court from dealing with the matter. It all depends on the circumstances of the case. There are instances where, depending on the nature of the matter and in order to enhance public confidence in the administration of justice, a Court may consider recusing itself from that particular matter. That is the position I opt for in this matter," said the judge.

However, he explained that in allowing the vetting process to continue the court acted in the best interest of the Nairobi City County and of the Country at large and in public interest.

He said the court had no option but to avoid a looming constitutional crisis.

This is because when the court suspended decision of the Independent Electoral and Boundaries commission (IEBC) to call for a by-election, it meant that IEBC would not proceed on with any of the preparations towards the holding of the by-election.

"As the parties had stopped the carrying out of the by-election by IEBC on one hand, and on the other hand, the constitutional time set under Article 182(5) of the Constitution was running, it therefore meant that all the matters before Court in the impeachment Petition were to be concluded within the period of 60 days," said the judge.

But as at now, the impeachment Petition is still pending and is coming up for a ruling on empanelment of a Multi-Judge bench on February 25, 2021.

"The truth, therefore, is that it’s practically inconceivable to have both the impeachment Petition determined and if the Petition is dismissed then a by-election to be conducted within the remainder of the 60 days if at all any would be left by then," said justice Mrima.

He added that the unique circumstances in Nairobi also involve a constitutional lacuna and the cases introduced a novel scenario.

This is because Article 182 of the Constitution mainly focuses on the absence of a governor and the deputy governor and that a by-election follows thereafter.

The issue is what happens to a legal process for the nomination of a deputy governor which is not concluded by the time the governor leaves office.

"The Constitution and the law is silent. The Constitution did not contemplate such a situation and as a result there is no provision on the way forward. That is a constitutional lacuna," said Justice Mrima.

He observed that in such instances, courts have acted in public interest and asserted the Court’s inherent jurisdiction in dealing with the lacuna.

"Faced with such a situation, a court cannot fold its legal hands and cite inability to act. If that happens then it amounts to abdication of duty on the part of the court," he stated.

The judge explained that the only way out to deal with the lacuna and in public interest was to allow the nomination process which had been legally initiated to proceed.