How Judge Mumbi Ngugi’s ruling seeks to fight impunity

Tuesday July 30 2019

High Court Judge Mumbi Ngugi who upheld a decision of a magistrate barring Samburu Governor Moses Lenolkulal from accessing his office. The same fate has befallen Kiambu Governor Ferdinand Waititu. FILE PHOTO | NATION MEDIA GROUP


The requirement for governors facing criminal charges to keep away from their offices started when High Court Judge Mumbi Ngugi upheld a decision of a magistrate barring Samburu County boss Moses Lenolkulal from accessing his office.

The judge ruled that the governor can only access his office with written permission of the Ethics and Anti-Corruption Commission.

Mr Lenolkulal is charged alongside 13 others.

He faces four counts relating to corruption and abuse of office.

The governor has since filed a notice seeking to overturn the decision.



In her ruling, Justice Ngugi observed that Section 62(6) of the Anti-corruption and Economic Crimes Act, apart from obfuscating, helps obliterate the "political hygiene" as it was contrary to the provisions of the constitutional requirement of integrity in governance, and against the national values as well as principles of leadership and integrity.

And Tuesday morning, Chief Magistrate Lawrence Mugambi followed the decision and barred Kiambu Governor Ferdinand Waititu from accessing his office.


According Justice Ngugi, allowing persons facing criminal charges to public offices entrenches corruption and impunity in the land.

The judge wondered why Kenyans have legislative authority, which they have delegated under Article 1 to the legislature and who passed Section 62(6) of the Anti-corruption and Economic Crimes Act to allow State officers whose removal is provided for in the Constitution to remain in the offices they have abused and used it for personal enrichment to the detriment of the public they are supposed to serve and to continue serving while undergoing prosecution.


She reasoned that a county governor, to whom Article 10 and Chapter Six apply, is charged with abuse of office, adding that he is basically charged with enriching himself at the expense of the people.

"Would it serve the public interest for him to go back to office and preside over the finances of the county that he has been charged with embezzling?" the judge posed.

She said Section 62(6) which leaves out constitutional officers from suspension because a procedure for their removal has been provided for, in her view, violates the letter and spirit of the Constitution particularly chapter six on leadership and integrity.

She agreed that the governor should have limited access to the county offices.