Supreme Court suspends Kidero ouster

By Wahome Thuku and Kamau Muthoni

Nairobi, Kenya: The Supreme Court has given Nairobi Governor Evans Kidero a new lease of life after suspending the Tuesday Court of Appeal decision to remove him from office.

Kidero and his deputy Johnathan Mweke were temporarily reinstated Wednesday after Justice Mohamed Ibrahim suspended the earlier Court of Appeal decision kicking them out of office.

The Supreme Court restrained the Independent Electoral and Boundaries Commission (IEBC) from certifying the seat as vacant, pending the hearing and determination of the application by Kidero challenging his removal. Further judge Ibrahim restrained the Nairobi County Assembly Speaker Alex ole Magelo from assuming office as acting governor as provided by the constitution. The case will be heard on May 23.

It emerged that following the nullification of his election, Kidero’s legal team worked overnight to prepare the paperwork for the appeal. His lawyer Tom Ojienda filed a notice of appeal minutes after the Court of Appeal judgment had been delivered and served it on the other parties.

And by Wednesday afternoon, the drove to the Supreme Court with a car-load of documents in 102 volumes and file the real appeal, indicating they were leaving nothing to chance.

According to the Article 182(4) of the constitution, a County Assembly Speaker is required to take over officer when both the governor and deputy governor’s seats are vacant.

There is no timeframe within which a Speaker should be sworn in after the seats have fallen vacant. However a by-election must be held within 60 days after the seat has fallen vacant.

On Tuesday two Court of Appeal judges GBM Kariuki and Patrick Kiage allowed an appeal filed by Kidero’s main challenger Ferdinand Waititu and nullified Kidero’s election but the third judge Mohamed Warsame who presided the hearing dissented holding that the Governor had been validly elected. The two judges said Waititu was not accorded a fair chance to challenge the election of Kidero. But Warsame was of the view that the judgment by High Court Richard Mwongo in rejecting the petition, had passed the test of time. 

Kidero filed the application under a certificate of urgency Wednesday afternoon arguing that the Appellate Court had erred by allowing the suit to sail through despite having it filed out of the constituted 30 days’ time. The Elections Act requires one to file an appeal within 30 days after the judgment of the High Court.