The High Court in Nairobi has referred a case in which governors want magistrates stopped from issuing orders barring them from accessing office once charged with corruption offenses to the Chief Justice.
Justice James Makau on Tuesday, October 6, directed the deputy registrar to transmit the file to CJ David Maraga without any delay for purposes of appointing a bench to hear the matter.
The case was filed by the Council of Governors on Friday, October 2.
CoG argued that it is not clear whether the order to bar a governor from accessing office applies only to the physical office at the county government headquarters or it covers access to all county government offices in all the sub-counties and wards.
It said the High Court needs to interpret the meaning of ‘office’ in the context of the election of a governor and the removal process.
Several governors have been arraigned in court to answer charges on corruption and economic crimes.
During bail hearings, the Director of Public Prosecutions has been raising strong objections that the accused, being governors, should only be released on bail on condition that they do not access their offices pending hearing and determination of their trials.
Some of the county chiefs ordered not to access office during the pendency of their criminal trials are Samburu Governor Moses Lenolkulal, impeached Governor Ferdinand Waititu, and Garissa Governor Ali Korane.
CoG’s lawyer Peter Wanyama said the duration of staying out of the office and the timelines for the criminal trial are not set.
“There is a major trend in the prosecution of corruption and economic crimes cases where governors have been targeted for prosecution and constructively removed from office,” he said.
He wants the court to restrain any magistrate in Kenya from making orders that constructively removing governors from office once they’ve been charged with a criminal offense.
Also sought was an order to have the matter determined by an uneven number of judges appointed by CJ.
COG said the case raises substantial questions of law.
“The concept of stepping aside has presented major difficulties in the running of county government operations. It has created paralysis and confusion in the performance of county government functions thereby undermining service delivery,” it said.
