Mombasa Governor Hassan Ali Joho has termed the petition seeking to remove him from office unconstitutional, and has accused the petitioners of side-stepping constitutional and legal processes.
Joho now wants the court to strike out the petition, which also seeks to bar him from holding any public office in the future. He said the court does not have jurisdiction to hear and determine the petition to declare the office of the Governor of Mombasa vacant.
In the motion filed on September 16, Joho, through his lawyer Paul Buti, said removal of the governor is clearly spelt out in the Constitution and does not include the court process.
“The Constitution and the County Government Act have elaborate provisions on the mode of removal of a governor when such an office falls vacant,” said Joho in the motion.
He said the Constitution and County Government Act also provides remedies, in the event the governor has been removed from office.
“It is therefore contrary to law, for the petitioners to side-step and avoid using any and all of these provisions, and to come to court for remedy,” the motion states in part.
He said he can only cease to hold office if and after the Senate has upheld an impeachment charge levelled against him, under Article 33(7).
Joho said that the petition by tycoon Ashok Doshi and his wife Pratibha Asho seeking to remove and bar him from holding public office cannot be likened to an impeachment charge.
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On July 30, 2021, Justice Erick Ogola directed Joho to file a response to Doshi’s petition within seven days. Joho applied for the petition to be struck out, arguing the High Court has no jurisdiction to hear and determine the case.
His lawyer said Joho can cease to hold office if he dies, resigns in writing, convicted for at least 12 months or removed from office under the constitution.
Doshi, through his lawyer Willis Oluga, wants Joho declared ineligible to any other public office in Kenya.
His petition emanates from a High Court sentence dated May 21, 2021, by Justice Sila Munyao, directing Joho to pay a fine of Sh250,000 or serve two months in prison.
Joho was convicted by Justice Munyao for illegally demolishing a million-shilling perimeter wall belonging to Doshi in 2019 and being in contempt of court orders.
The governor was found guilty of defying orders issued on May 6, 2019, by justice Ann Amollo, restraining the county from demolishing the billionaire’s perimeter wall and trespassing into the property in Changamwe.
In their petition filed at the Mombasa High Court on July 29, the couple claims Joho and Changamwe Ward Representative Bernard Ogutu are unfit to hold any state office and want Justice Erick Ogola to declare the office of the Governor of Mombasa vacant.
However, Buti said that Joho’s removal from office would require a motion by a third of all Members of the County Assembly (MCAs) under the County Government Act. He would be investigated and the findings reported to the Senate.
He added that, upon the governor being accorded an opportunity to defend himself before the Senate committee, the Senate would then determine his fate based on the findings.