CoG loses bid to protect members facing charges


The High Court has affirmed the apex court’s decision that found barring a governor from accessing his office pending criminal proceedings lodged against him/her cannot be equated to removal from office.

Justices Grace Nzioka, James Wakiaga and Esther Maina dismissed the case filed separately by the Council of Governors and former Nairobi Governor Mike Sonko. The two were later consolidated as they raised similar issues.

The Council of Governors sought to have the court restrain any magistrate from making orders that constructively remove governors from office once charged with a criminal offence.

 “The concept of stepping aside has presented major difficulties in the running of county government operations. It has created a paralysis and confusion in the performance of county government functions thereby undermining service delivery,” CoG said.

But justices Nzioka, Wakiaga and Maina said the issues raised had been settled by the Supreme Court in the Baba Yao-Ferdinand Waititu case. The Supreme Court concluded it was a misguided notion.

Waititu argued before the Supreme Court that governors facing criminal cases such as graft should not be barred from accessing their offices because doing so amounts to a constructive removal from power. 

On Friday, the High Court agreed that the issues raised by the petitioner had been conclusively determined by the apex court and that it is binding to all other courts.

“This then binds us from dwelling on that issue,” Justice Nzioka said.

The court also dismissed the issues raised by Sonko, who invited the court to look at how he was arrested, detained, transferred from Mombasa to Nairobi and charged.

Sonko claimed he was mishandled when he was arrested in Mombasa in 2019 after detectives trailed him for 14 hours before his arrest. He argued his rights were violated and sought damages.

The bench, however, said they required proof and evidence to enable the court to come to a determination.

The court was of the opinion that even if they don’t deal with those issues, Sonko’s opportunity is not squandered. He can still raise it at the trial court where his cases are pending.

Several governors have been arraigned to answer charges of corruption and economic crimes.

During bail hearings, the DPP has been raising objections that the accused should only be released on bail on condition that they do not access their offices pending hearing and determination of their cases.

Some county chiefs ordered not to access office during pendency of their cases are Samburu Governor Moses Lenolkulal, impeached Governor Ferdinand Waititu and Garissa Governor Ali Korane.

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