Nakuru Governor Susan Kihika has moved to the Court of Appeal in a rush to stop her sentecvncing over the appointment of CECs.
In her application before Justices Fatuma Sichale, Lydia Achode, and Fred Ochieng, the governor wants a stay of the sentencing scheduled for tomorrow pending an appeal she filed on March 28, this year.
On March 21, the Employment and Labour Court found Kihika guilty of contempt for disobeying orders directing her to appoint new County Executive Committee Members (CECs).
In her ruling, Justice Hellen Wasilwa ordered Kihika to appear before the court on Tuesday April 18, 2023, for sentencing.
The judge ruled that Kihika was in contempt, for not following the proper process of new nominations in accordance with the constitution, as directed by the court.
The court had on December 5, 2022, quashed Kihika's initial list of 10 CEC nominees. It declared it unconstitutional and ordered the county to restart the appointment process.
"It is in my finding that the process initiated for the appointment of CECs was skewed and does not reflect the County's diversity," ruled Wasilwa.
However, in the new list submitted for vetting on December 8, 2022, the judge noted that Kihika only withdrew and replaced one name from her previous list.
According to Wasilwa, Kihika's action was unlawful and in disobedience of court orders.
And today, Kihika's lawyer Professor Tom Ojienda told the judges that if they do not stop the sentencing, Kihika'a appeal challenging her conviction would be irrelevant.
"We have a viable appeal against Kihika's unlawful conviction because we are challenging the jurisdiction of the court that convicted her," said Ojienda.
The lawyer in his submission claimed that the governor might be committed to a civil jail without being given an opportunity to appeal her conviction.
"The governor followed all the procedures in her second appointment. She has proof filed before the court of appeal and has a right to be heard before she is sentenced," he said.
Ojienda said the governor should be excluded from appearing for sentencing because of the live appeal.
However, Dr Magare Gikenyi, who sued Kihika over the appointment, said the application was premature.
He said until the governor is sentenced, the appeal cannot be valid.
"The notice of appeal is not valid. What is the governor appealing and she has not been sentenced?" he posed.
According to Magare, the governor cannot use the appellate court as a way of escaping her punishment for committing an offence.
He noted that Kihika disobeyed court orders and cannot seek redress in the same court she disobeyed.
Lawyer Kemboi Sirma supported Gikenyi's submission and said the issues of jurisdiction were never raised before Ms Wasilwa.
He said despite being the governor, Kihika must face the law and should not use the appellate court for protection.
The court of appeal will decide whether to stay the sentencing in the course of the day.