The High Court has declined to stop the swearing-in of Kiambu Deputy Governor James Nyoro as governor. An impeached Ferdinand Waititu had sought ex-parte orders, among them the barring of his deputy from taking over as Kiambu governor.
The court, instead, directed that the matter be heard inter-parte on Monday, February 3. Mr Waititu has listed Kiambu County Assembly, the Speaker of the Kiambu County Assembly, the Speaker of the Senate, the Senate and Mr Nyoro as respondents in the case.
In his petition yesterday, Waititu argues that the impeachment process was flawed, as Senate and the county assembly did not follow their Standing Orders. He cites an alleged violation of statutory timelines by both Houses as well as lack of the two-third requirement when the assembly voted to kick him out of office.
He also wants the court to prohibit, restrain or stop the Gazettement of the date, time and place for the swearing-in of his deputy.
Waititu was impeached on Wednesday when at least 28 Senators voted in support of his ouster. He claims there were only 57 MCAs when the Assembly took the vote, falling short of the Two-third requirement for the impeachment of a governor.
The county assembly has 92 members, meaning it requires at least 62 members to be present to proceed with an impeachment Motion.
“The above is buttressed by the fact that as per the biometric log of the members who attended the session, only 57 members were present the entire day,” says Waititu in the petition.
He further claims that 30 MCAs were not within the precinct of the assembly when the vote was taken, while two were absent from the session without apologies. He claims another three MCAs were in the United Arab Emirates on the official business of the House. The members said to have been in the United Arab Emirates were listed as MCAs Joseph Kahenya Karinga, Peter Wainaina Njoroge and John Njiru Njue.
“Section 33 of the County Government’s Act dictates that the quorum for supporting the Motion should be two-thirds of the total number of the Members of the County Assembly. The total number of members for the Assembly is 92, thus the Two-thirds is 62,” argues Waititu.
The county assembly had, however, told the Senate that 63 MCAs voted for the impeachment, while one member opposed it.
He argues that the Motion was marred by “material improprieties, grave illegalities, and procedural irregularities, and hence the same is illegal” as it violated both the County Government’s Act and the assembly standing orders.
He says his impeachment by the assembly was driven by a desire to execute malicious and punitive measures against him. The embattled politician says the assembly also contravened statutory timelines that require the assembly to communicate to the Senate Speaker within two days of such a resolution.
He says the communication was done on December 23, 2019, four days outside the stipulated period.
Waititu further pokes holes in the Senate proceedings, arguing that Senate Speaker Kenneth Lusaka violated provisions of the County Government Act by convening the Senate meeting outside the seven days’ period provided for in the said section.
He says Speaker Lusaka also violated the Act by tabling the resolution of the county assembly passed on Dec 19, 2019, and which were transmitted to him by the county Speaker on December 23.
“The petitioner avers that the violation of the statutory timeline rendered the resolution debated by the fourth Respondent (Senate) null and void ab initio,” states the petition.
Denied fair hearing
He also argues that he was denied his right to a fair hearing by the two Houses. He claims the lawyers he sent to represent him in the county assembly were not given an opportunity to defend him, neither were they provided with the evidence leveled against him.
“The petitioner avers that the 4th respondent (Senate) violated his right to a fair hearing and a fair administrative process by debating and subjecting the resolution of the 1st Respondent (county assembly) passed on Dec 19, 2019, which resolution contravenes every provision of the law attendant to it,” reads the filed petition.
He further claims Senate was biased against him by rejecting the response and evidence he presented on grounds it was brought outside timelines set by the House.
“The petitioner avers that the said action of unfair application of the procedure relating to the resolution of impeachment by 4th Respondent violated his right of equal protection and equal benefit of the law,” he argues.