A Nairobi voter has said former Deputy Governor Polycarp Igathe ought to have taken over from Mike Sonko since he never formally resigned.
His resignation on January 12, 2018, was never communicated to the Independent Electoral and Boundaries Commission.
In court documents, voter Patrick Kiiru says the IEBC has no right to call a by-election to fill the vacancy in the office of impeached Governor Sonko since a deputy governor is already in place.
He says Igathe should automatically take over.
The IEBC called a by-election for February 18 but Sonko won an injunction, pending hearing of his case. He argues he was removed without following procedure.
“The the impending by-election as gazetted by the IEBC is premature and unconstitutional,” voter Kiiru says.
Kiiru argues the by-election notice is both irregular and premature as it is based on a wrongful interpretation of the Constitution and the law on filling the vacancy in a governor’s office.
“One of the ways a vacancy can occur in the office of the governor and by extension that of the deputy governor is through resignation. Such resignation ought to be communicated in writing to the office of the speaker of the county assembly,” he says.
The case was listed for hearing on Tuesday before Justice Anthony Mrima but he recused himself on the grounds that one of the lawyers in the case is closely related to him.
“I am closely related to George Kithi and it is not fair for me to hear the case. The best thing is to recuse myself and order the file be placed before another judge,” he said.
He directed that the matter be mentioned before a new judge on January 19 to fix a hearing date. He directed Kiiru serve Sonko with his papers after parties said they were not opposed to Sonko being included in the case.
Kiiru wants the court to declare Gazette Notice 10914 of 2020 unconstitutional and order the IEBC to issue him with documents pertaining to the purported vacancy of the office of the deputy governor.
The voter also seeks a declaration that Igathe failed to follow the legal requirements in tendering his resignation and therefore a vacancy has not occurred in the office of the deputy governor.
Kiiru also asked the court to issue a permanent injunction restraining the IEBC from conducting any by election in Nairobi.
“There is no clear legal standpoint regarding s a vacancy in the office of the deputy governor. It is important for the court to give a decision on such legal issues before a by-election is conducted to avert a crisis whereby a new governor would be elected when there is already one [presumably Igathe] in office,” he says.
According to the court documents, the resignation was not communicated to the speaker of the assembly as stipulated by the Constitution.
Kiiru says since there was no clear position on resignation of Igathe, the former assembly speaker wrote to the IEBC inquiring whether it was aware of the Igathe’s resignation, before the assembly could proceed with the vetting of the nominee.
Before the commission could respond to the inquiry by the former speaker, the anti-corruption court issued orders stopping the vetting of the nominee of the appointee deputy governor.
However, the electoral body eventually responded to the enquiry in a letter dated January last year. It indicated that it was not aware of a vacancy in the office of the deputy governor and this was the assembly position until December 21 when the IEBC published the challenged Gazette notice of a by-election on February 18.
“The Gazette notice has compounded the question of the vacancy even further since the IEBC itself had acknowledged there was no vacancy in the office of the DG who ought to assume the office of the county governor in case a vacancy in the latter’s office occurs,” he says.
Kiiru has sued the IEBC and the Attorney General. The acting governor of Nairobi, Igathe, the assembly and the Jubilee Party have been listed as interested parties.