The former Nairobi Governor Mike Sonko on Monday got temporary reprieve in his quest to overturn his ouster after the court barred IEBC from conducting the by-elections.
Justice Antony Mrima temporarily suspended the special gazette notice issued by IEBC last month calling for a by-election in Nairobi after Sonko’s impeachment.
The judge ruled that the by-election is temporarily suspended pending the hearing and determination of the application by Sonko.
“The special Gazette Notice No. 10914 dated December 21 2020issued by the IEBC be and is hereby suspended until the hearing and determination of the amended Notice of Motion” the order reads.
The case will be mentioned on January 14, 2021, for hearing of the application by Sonko.
In the case, Sonko moved to court challenging his ouster from office claiming that due process was not followed when he was removed from office
Sonko argued that he will suffer irreparable damage not compensatable in monetary terms because he stands to lose his position as the second governor of Nairobi City County without the due process of the law.
Through lawyer Wilfred Nyamu, Sonko wants the court to bar the IEBC from holding elections.
Sonko faulted the swearing-in of the acting governor, arguing that no oath of assumption can be administered with the intention of filling the vacancy of governor until 10 days have elapsed from the date of the office falling vacant, and a notice has been given setting in motion the process of filling the office.
“The petitioner challenges the process under which he was removed setting out infringement of his fundamental rights and freedoms and violations of various provisions of the Constitution of Kenya 2010 and other statutes,” read court papers.
He says there is sufficient evidence to demonstrate that the process did not meet the legal threshold, claiming that it was not transparent, accountable, and verifiable and its integrity is in question.
“It is also well settled that some of the MCAs were in Kilifi county outside the jurisdiction of the Nairobi city county and it is not envisaged that they could vote either physically or virtually contrary to the provisions of the Standing Orders,”
Sonko says some MCAs who were outside Nairobi have alleged that their accounts were hacked and corrupted.
He also claims that strangers purported to log in and vote on behalf of the MCAs who were in Kilifi.
According to the court papers, neither the law nor the Standing Orders provide for virtual voting or attendance of sessions of the Nairobi city county assembly.
“It is clear from the screenshots of the Zoom system used on the material date that some members logged into the system more than once with different accounts at the same time. There was double and in some cases quadruple logging into peoples’ accounts, which raises serious questions about the integrity of the process,” he says.
Senators upheld Sonko's impeachment on December 17. This is after MCAs impeached him on December 3.
Some 27 legislators voted in favour of each of the charges thus surpassing the Constitutional threshold of 24 votes needed to remove the governor from office.
Sixteen senators voted to oppose each of the charges with two lawmakers – Mutula Kilonzo Jr (Makueni) and Johnson Sakaja (Nairobi) - opting to abstain from the vote.
The embattled governor was accused of gross violation of the constitution or any other law, abuse of office, gross misconduct, and crimes under national law.