Petition
A Meru journalist has filed an application in the High Court seeking the court to allow IEBC and the Judiciary’s Chief Registrar as well as the Chief Justice to nominate a judge to conduct the swearing in of a new governor in the County, as provided in the Assumption of Office of the Governor’s Act 2019.
In a virtual session before Justice Hesbon Mbogo in court yesterday, Mr Kimencu Eric Koome and Gitonga M’Ruruti through advocate Lucas Kobia said their appeal was premised on article 165 (3) (c) of the Constitution of Kenya 2010 which provides that if anyone is impeached or removed from office by a tribunal, he/she can only make an appeal to the High Court.
“Our simple argument is that it is only this court, sitting as an appellate court, that can determine the issue of the impeachment of Honourable Kawira Mwangaza and not the constitutional court.” “As a constitutional court, the Milimani court would be usurping the powers of the appellate court by meddling in the affairs of the impeachment process which is clearly defined and structured in the constitution,” the applicants said.
They further argued that since the impeached governor hasn’t filed any appeal, it is only fair if she argues her constitutional petition while out of office.
“We are also telling the court that Honourable Mwangaza is abusing the court process and the law to the extent of obtaining conservatory orders that make her break the law by signing the Meru County Appropriation Act, 2024 into law, yet this Act was not subjected to public participation as a mandatory requirement of the County Government Act, 2012,” they further argued.
They noted that the first action of Mwangaza while in office was to appoint a taskforce to check into the pending bills of Meru County but to date, the taskforce has never filed any report and they were not sure whether it is still in office, two years after its appointment.
Mr Kimencu Eric Koome, a journalist and a petitioner in this case. ((Photo by Dickson Mwiti)
This, they added, begs the question, on what basis was Mwangaza approving the pending bills allocation without a report from the same taskforce? Their inference is that this brings a conflict of interest in her actions and inactions after impeachment.
“She even went ahead to approve the appropriation act which allocated funds to the office of her deputy yet she has not delegated any functions to that office.” “It can be assumed that the impeached Governor intends to ensure the members of public suffer loss of public funds if she goes home, in retaliation,” they further stated.
Their opinion is that if she will be allowed to continue occupying the office, then it will set a bad precedent to devolution across the country and across the 47 counties. “It is only fair if she fights her way in court while out of office, as per the law,” they said.
The two are also praying the court to vacate the interim orders issued by the Milimani High court in HCCHR petition no. E429/24 which is now in a lower court, apart from the fact that the said court has no jurisdiction to hear the application before it. “In conclusion, in the appeal, we will be seeking the court’s indulgence to determine that if one is impeached unfairly, such a person should be entitled to compensation.”
“In the same breath, we will be seeking court’s indulgence to declare that impeachment matters are in the purview of Employment and Labour Relations court and as such an impeached person ought to seek redress at the Employment court and not the Constitutional court,” they said further arguing that a constitutional court has no jurisdiction to deal with an employment issue.
Mwangaza’s advocates applied for seven days to file a response and the matter is scheduled for highlighting of submissions on November 25, 2024 before Justice Hesbon Mbogo of the Meru High court.