Inside Sonko's push for elusive justice at East Africa's court

A courtroom packed with Sonko's supporters, already used to a string of disappointments at the corridors of justice, would erupt in cheer.

A month earlier, the High Court in Nairobi had lifted other orders barring the Independent Electoral and Boundaries Commission (IEBC) from clearing him to contest in the August 9 elections. The decision granted him hope in his bid to try his luck away from Nairobi, where he had signed off the county to the national government barely three years into his tenure at the helm of Kenya's capital.

But justices David Majanja, Mugure Thande and Chacha Mwita left the subject of Sonko's clearance to the discretion of IEBC. The IEBC would decline to clear him to contest for Mombasa governorship, a decision upheld by the commission's dispute resolution committee.

Got some relief

That is how Sonko would end up at the High Court, which would offer some relief and see him handed a nomination certificate before the Supreme Court struck hard.

The former county boss is now at the Arusha-based East African Court of Justice, courtesy of a case he lodged two days after his Supreme Court loss. Nearly seven months after his application, the East African court established a five-judge Bench to hear his petition against the Supreme Court's decision that upheld his impeachment, setting its hearing for next month. Justices Yohane Masara, Charles Nyawello, Richard Muhumuza, Richard Wabwire Wejuli and Gacuko Leonard are set to hear the matter on March 27, deciding the fate of the seven orders that Sonko wants to be granted, chief of which is that his impeachment is quashed.

In court documents seen by The Sunday Standard, Sonko argues that proceedings of his appeals against his impeachment were tainted with "illegalities, impropriety and judicial misconduct."

Sonko's case against the State, in which Attorney-General Justin Muturi is a respondent, is centred around arguments of judicial misconduct that he states violated international conventions and that he was not granted a fair trial.

"I am gravely and fundamentally aggrieved by the decision of the Supreme Court of Kenya and in the manner in which the said court, and the courts below, conducted the said proceedings contrary to the rule of law and rules of natural justice with the resultant effect of a grave injustice being visited upon myself and the people I represent," he states in his affidavit.

The Arusha court granted the Attorney-General 45 days to file responses to Sonko's application.

The former governor argues that the Judiciary violated the Constitution and the Treaty for the Establishment of the East African Community, stating he had been discriminated against and selectively persecuted, with his political rights curtailed.

His assertions

His case is grounded in the conduct of suspended judge Juma Chitembwe as much as it is in Sonko's assertions that the Supreme Court heard his case in haste and did not grant him "reasonable opportunity and time to file proper submissions" and responses.

In his affidavit, Sonko cites Rule 22 of the Supreme Court Rules "on Scheduling Conference; including the certification of the matter ready for hearing and issuing a notice of seven days and holding a pre-trial conference."

"Rule 25 (1) of the Supreme Court Rules which requires the Deputy Registrar of the Supreme Court to give a notice of not less than 14 days ahead of a hearing date," Sonko adds, arguing that the Supreme Court had violated the said rules.

Four days before the Supreme Court's deathblow, the apex court had issued its directions on how the case, whose hearing date the court set at July 14, would proceed. The 12 respondents in the matter, who included the Nairobi County Assembly and the Senate, were to file responses to Sonko's petition and submissions by the close of business on July 12.

"The petitioner is at liberty to file a rejoinder (if any) and serve the same upon the respondents before the midday of July 13, 2022," Supreme Court Registrar Letizia Wachira directed. "The matter will be listed for the Hearing of the petition before a five-judge-bench on July 14 at 9.00 am."

In a letter dated July 12, Sonko's lawyer would fault the registrar's directions, stating their team had not received responses or filed submissions in a matter relating to an application by the respondents to have the Supreme Court appeal struck out.

"The directions issued by (the) court on July 11, 2022, presuppose a situation where the petition(er) had received responses and even filed submissions, which is not the case. A serious miscarriage of justice is likely to occur on the part of the petitioner if some of these important processes are bypassed," Sonko's lawyer Wilfred Nyamu wrote.

Ms Wachira would write back, acknowledging an "inadvertent mistake" that had taken place.

"It has since come to our attention that due to (an) inadvertent mistake, directions were not issued in respect to the petitioner filing submissions in support of the petition," the Supreme Court registrar replied on July 12.

"We apologise for this oversight and hereby enclose further directions for compliance by the parties."

The new directions required Sonko's team to file a soft copy of his submissions by midnight of July 12, with respondents directed to file and serve soft copies of supplementary submissions by 10 am the next day.

"The petitioner remains at liberty to file a soft copy of any rejoinder by noon of (the) 13th day of July 2022," Deputy Registrar of the Supreme Court Bernard Kasavuli wrote. The deputy registrar's letter is part of Sonko's argument that he was not granted enough time to file his submissions.

The Supreme Court heard the matter on July 14 and rendered its decision the next day. a"Nowhere in the history of the country since the inception of the Supreme Court of Kenya has it heard parties and rendered a judgment within 24 hours," Sonko states.

In crosshairs

His submissions on Justice Chitembwe revolve around the judge's investigation by a tribunal that recommended his removal from office, a decision that Chitembwe has appealed at the Supreme Court.

"The said judge admits in various recordings of his improprieties, influence, coercion and malpractices including receiving and soliciting for bribes in order to influence the outcome of the said judgment, which ultimately happened," Sonko avers, saying the High Court's dismissal of his impeachment appeal had been "actuated by coercion, bribery and fraud".

In dismissing the argument, the Supreme Court had asserted that Sonko's impeachment appeal at the High Court had been heard by a three-judge bench, with a five-judge bench of the Court of Appeal upholding the decision.

Sonko also has Chief Justice Martha Koome in his crosshairs, swearing in his submissions at the Arusha court that Koome had previously expressed herself publicly in Sonko's case.

"...and affirmed the position that I do not stand a chance to vie and contest for public office," Sonko adds, stating that the two judges contravened the Bangalore Principles on judicial conduct.