The Supreme Court has dismissed a request by former Nairobi Governor Mike Sonko to have Chief Justice Martha Koome disqualified from his impeachment case over bias claims.
The court also declined Mr Sonko’s request for postponement of the hearing on grounds that his lawyers, Wilfred Nyamu and Dr John Khaminwa, were not prepared to proceed with the case.
The lawyers alleged that based on recent remarks by the Chief Justice on the election of convicted or impeached persons, she was perceived to be biased and impartial in the case concerning Mr Sonko.
They wanted her to recuse herself from the Supreme Court bench that is hearing an appeal lodged against rulings made by the High Court and Court of appeal to uphold Mr Sonko’s impeachment by the Senate and Nairobi County Assembly.
But the Apex court dismissed both applications – for recusal of the CJ and adjournment of the hearing – and ordered the parties to make their oral arguments on the case.
Concerning the CJ’s recusal, the judges said that there were no materials placed before them to justify the bias allegations.
“No material has been placed before us to justify recusal by the president of the court,” it was ruled.
The judges noted that the issues before the court are about the law and interpretation of the Constitution concerning the impeachment of a governor.
“Mr Sonko is uncomfortable with the Chief Justice presiding on this matter or participating in these proceedings whatsoever. He believes the CJ has taken a position on the same based on her statement issued recently concerning the appellant (Sonko). This statement was aired in public and for that matter, justice must not only be done must be seen to be done,” lawyer Nyamu said.
The CJ’s remarks that formed the basis of Mr Sonko’s discomfort were about the application of Article 75 of the Constitution, which Dr Khaminwa said may have been misunderstood leading to the perception that she could be biased in the matter.
“That statement is in the public domain, not only is Mr Sonko concerned but members of the public are also sympathetic to him. Where it is perceived that the CJ will be biased, the best thing for the CJ to do is to recuse herself and stay away from this matter,” he added.
Concerning the adjournment, the lawyers said the other parties filed their documents late and they had not had adequate time to read the written arguments.
“Under Article 50 of the Constitution, parties ought to be given adequate time to prepare. That time has not been afforded by the directions of the court on the hearing of the matter. It cannot be lost that this is the appellant’s last bullet concerning his fundamental rights under Article 38 of the Constitution,” said Mr Nyamu.
But the court said the reasons advanced by Mr Sonko’s lawyers were not satisfactory to warrant postponement of the hearing.
“We are not satisfied the reasons advanced are sufficient to warrant adjournment. The appellant filed the appeal in April and he did not file a hard copy, he filed it late and the submissions although filed late are already on record,” said the court in the ruling read by the CJ.
The adjournment and the recusal applications had been opposed by other parties in the case including the electoral commission and the Attorney General, who said the matter was urgent and had a bearing on Mr Sonko’s election.
Through lawyers, Paul Nyamodi and Edwin Mukele, the Commission and the AG respectively, said the two applications were a delay tactic because of the High Court judgment that allowed Mr Sonko to vie for the Mombasa governorship.
The High Court’s decision was based on the pending appeal at the Supreme Court challenging the impeachment.
“It is our position that we have every confidence in the CJ’s ability to handle the matter impartially. The CJ is the senior judicial officer in Kenya, the comments causing Mr Sonko discomfort were based on particular provisions of the Constitution,” said Mr Nyamodi.
“As CJ you are entitled to comments on the constitutional provision. The comments were on the provision of the Constitution, not this matter. The applications are a time-wasting gimmick by Mr Sonko and his advocates,” he stated.
Lawyer Mukele on his part said the IEBC is in a dilemma because there are certain processes in motion including the printing of ballot papers.
