The Supreme Court on Friday clarified that the advisory opinion filed before it by the Speaker to the Nairobi County Assembly is not a bar to Governor Mike Sonko from discharging is constitutional functions.
Through the Deputy Registrar Daniel Keiwua , the court has further clarified that it hasn’t given any orders restraining the appointment of Ms Anne Kananu Mwenda as deputy governor.
In the communication sent to Sonko's lawyer, the Chairman of the Independent Electoral and Boundaries Commission Wafula Chebukati and the Nairobi County Assembly Clerk, Mr Keiwua said "the court has not given any directions on an advisory opinion filed by the Speaker to the Nairobi County Assembly”.
Mr Keiwua further said the advisory “does not act as a stay of any duties or obligations sought for clarification.”
“Therefore the reference filed in the Supreme Court of Kenya should not be visited upon by any party to act as a stay of their duties,” Mr Keiwua said in the correspondence dated February 7, 2020 sent to Mr Sonko’s lawyer Joseph Kiarie.
Mr Kiarie had written to the Registrar of the Supreme Court on February 3 seeking clarification whether the petition by the Speaker stopped or barred any office, commission, authorities to perform its duties as stipulated by the law.
Mr Keiwua has said the court not made any decision about the appointment of the Deputy Speaker Ms Ann Kananu Mwenda.
The petition is slated for March 5 for further directions. The court directed all the parties to file evidence within 21 days.
In the petition. the speaker is seeking an advisory opinion from the Supreme Court regarding a lacuna in the law in the absence of both the governor and the deputy.
In a petition filed at the apex court by the assembly’s advocate John Diro, the Assembly wants the court to give direction whether there is a vacuum in the office of the governor and whether Governor Mike Sonko can appoint a deputy in the current circumstances.
This comes after the arraignment and indictment of Sonko before the anti-graft court last December.
The assembly also sought for a Constitutional interpretation on whether the speaker of the assembly can assume the office as per the law with full powers vested in the governor in the absence of both the governor and the deputy. In addition to an opinion on what happens when the speaker declines to assume the office.
“The request is meant to seek your wise counsel on the grey areas of the law for the purpose of guiding the functioning of constitutional sphere of the devolved government.
Subsequently, the advisory opinion sought in this reference will help in establishing the jurisprudence and give clarity regarding the current unique situation facing the county of Nairobi….,” read in part, the application.
The application lists the county assembly speaker and the clerk as applicants and Nairobi County government, the attorney general and the chair of IEBC as intended interested parties.
The county government lawyers led by senior counsel Prof Tom Ojienda and lawyer Harrison Kinyanjui stated in court that there is a lacuna in the manner in which the law is being interpreted in the current scenario of Nairobi County.
Prof Ojienda said Mr Sonko “is still actively in office and the constitutionally elected Governor of Nairobi County”, however, the case by Elachi raises a very serious constitutional question “as to how the office of the governor of Nairobi County can be assumed in the absence of a sitting governor.”
“As far as we are concerned Sonko is still the Governor of Nairobi County and there is no vacancy which can be filled or assumed by the Speaker,” said Prof Ojienda.
He, nonetheless, called for the expeditious determination whether a Speaker can assume the office of the Governor in the absence of a deputy governor.
“The question for determination is how the office of the Governor Nairobi County can be assumed in the absence of a sitting governor, and whether the Speaker can assume the position of governor or whether a speaker of any other county can assume that office in the event there is no governor in office,” he said.
Prof Ojienda also said it should also be decided whether a Speaker can discharge the functions of two offices – that of the Governor and that of the Speaker simultaneously.