The High Court in Mombasa on July 13, gave former Nairobi Mike Sonko a legal green light to vie for the governor seat in Mombasa County, a move that has already triggered tremors among the Azimio la Umoja One Kenya Alliance camp in the coastal region.
The alliance has Abdulswamad Nassir, the MP for Mvita Constituency, vying on the ODM party ticket and regarded as a front runner in the race. Sonko’s entry into the fray, makes the race competitive because of his name recognition as the impeached ex-Nairobi governor, known for dishing out money to his supporters.
Sonko, who was not present in court during the ruling, now rejoins the contest under the Wiper Democratic Movement Party, a party led by one of Azimio la Umoja-One Kenya principal partner Kalonzo Musyoka-led, setting up a head-to-head contest between Musyoka and Azimio’s flag bearer Raila Odinga, who’s sponsoring Nassir. More interestingly, the contest will also be a test of cohesion and loyalty, as Odinga intervened during the nomination period, and persuaded business mogul Shabhal Omar to step down in Nassir’s favor.
Supporters broke into cheers and songs after the judgment was read, chanting “Sonko Oyieee! Sio uchawi, ni maombi.”
Sonko’s victory at the High Court comes after he was turned down by Mombasa County returning officer (MCRO) and the IEBC Disputes Resolution Committee (DRC). The two entities rejected Sonko’s bid, saying he was not eligible to vie because he had failed the constitutional threshold.
Swalaha Yusuf, the IEBC MCRO, said the former governor did not meet Chapter Six of the Constitution on leadership and integrity following his impeachment by the Nairobi City County Assembly members in December 2020. In addition, Yusuf said Sonko had no court orders to compel IEBC to clear him as purported by media reports.
The IEBC DRC said Sonko had failed to submit his original degree certificate to the commission on time, as required by the law. In addition, it had ruled that the former governor presented a university degree copy certified by a commissioner of oaths instead of the issuing university.
Sonko moved to the High Court to challenge the decision to bar him from running for the seat, and Chief Justice Martha Koome formed a three-bench judge to hear and determine the matter. The judges were Justices Olga Segwe, Stephen Githinji, and Ann Ong’injo.
COURT RULING VIDEO
On Wednesday, between 10 am and 1 pm, the three judges read the consolidated judgment in an adrenaline-packed courtroom. All the judges faulted MCRO, DRC, and IEBC, which were the first, second, and third respondents, respectively. Wiper Party was the fourth respondent.
Supporters broke into cheers and songs, chanting “Sonko Oyieee! Sio uchawi, ni maombi,” (Translation: the victory comes from prayers and not witchcraft) after the judgment was read.
“Regulation 47 (1) does not specify who is to certify the copy of the degree,” Justice Githinji said.
The judge said that the petitioner, Mike Sonko, complied with the constitutional, statutory, and regulatory requirements regarding producing the certified copy of the degree. Consequently, he read further that the IEBC press release requiring aspirants to produce copies of their degrees certified by the issuing university may have escaped the petitioner’s attention.
“We say so because they were available, and when he learned about the additional requirements of the university degree, he made frantic efforts to obtain them, and he presented them in less than one hour,” Justice Githinji said.
In addition, the judges ruled that Article 47 grants l IEBC the power to publish important information about elections; that provision does not authorize IEBC to demand additional requirements, as it did in Sonko’s case.
“In our view, Mombasa CRO acted unreasonably. The DRC was clearly unreasonable and irrational in its approach to give the decision to disqualify Sonko, given the evidence that was placed before it.
“It acted in a rushed manner without considering the evidence before it. I do not also see how the extension of time by a day could have given Sonko an unfair advantage or even affected IEBC’s election preparedness,” the judge said.
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Furthermore, the ruling stated that it was unreasonable for the first, second, and third respondents to refuse to clear Sonko in those circumstances. The judges said the rejection of Sonko’s bid was an infringement of his rights under Article 47 of the Constitution.
The court also faulted the first, second, and third respondents for interpreting the constitution selectively to suit their needs.
“The first, second, and third respondents took the view that Article 75 of the Constitution is self-governing and self-executing,” Justice Ong’injo read.
Reading further, the judge stated that a holistic interpretation of the constitution means that it speaks as one harmonious document and is not self-contradictory. Therefore, the judges ruled that Article 75, being part of chapter 6 of the Constitution of Kenya, cannot be read in isolation from Article 193.
“Mombasa CRO acted unreasonably, illogically, and unfairly when she rejected Sonko’s degree that was certified by an advocate and commissioner of oaths and violated the rights of Sonko,” Justice Sewe said.
“We are persuaded that article 193 (3) was deliberately put in place by the framers of the Constitution to afford protection to any citizen who seeks to challenge the decision in any appeal.
“Therefore, a person is not disqualified unless all the possibilities of appeals and review of the relevant decisions have been exhausted. It is in our considered view discriminatory that IEBC would deny Sonko’s candidature while there is an appeal in the Supreme Court without even giving any legal explanation,” Justice Ong’injo read the bench’s decision.
Justice Olga Sewe, who was the leader of the bench, read the conclusion of the matter, which handed Sonko the victory.
“Mombasa CRO acted unreasonably, illogically, and unfairly when she rejected Sonko’s degree that was certified by an advocate and commissioner of oaths and violated the rights of Sonko,” Justice Sewe said.
Besides, the judges said that there being an appeal pending before the Supreme Court regarding Sonko’s impeachment, the IEBC’s refusal to accept Sonko’s nomination papers violated the Constitution.
The court ordered IEBC to accept Mike Sonko’s nomination papers and include his name in the list of gubernatorial candidates for Mombasa.
Nyamu asked for an order to have Sonko’s name gazetted in the Kenya Gazette as a gubernatorial candidate for Mombasa.
Derrick Odhiambo, one of Sonko’s lawyers, thanked the bench for the ruling it delivered.
‘Indeed, the people of Mombasa and citizens of this nation today are very, very proud. This court has added to their confidence in the judiciary,” Odhiambo said.
Eunice Lumallas, Wiper Party’s lawyer, told the court, “the decision you have rendered has vindicated justice. Justice has been rendered, and justice has been felt.”
Edwin Mukele, the lawyer for IEBC and MCRO, lauded the court for its rendering judgment in time. However, he intimated a possibility of an appeal.
“Thank you for delivering the judgment as soon as it was practicable. We intend to take instructions from my client with respect to the judgment on the way forward,” Mukele said.
Ali Mbogo, the MP for Kisauni Constituency and Sonko’s running mate, addressed a euphoric crowd outside the court and said that the judgement had given the people of Mombasa hope and quashed the plans of Governor Hassan Joho and “his project.”
Joho has openly endorsed Nassir to be his successor.
“I thank the judges for their judgment that has revived the hopes of the people of Mombasa. I also thank our lawyers for their hard work throughout the case process. We shall now start a campaign like no other. We shall visit every corner of Mombasa County though time is not on our side,” Mbogo said.
Meanwhile, Wilfred Nyamu, Sonko’s lead lawyer in the case, said they had initiated a legal process against the IEBC chairman, Wafula Chebukati.
“We have filed an application to send Chebukati to a civil jail because they gazetted the names of candidates for the governor position in Mombasa when there was an order restraining him,” Nyamu said.
The general election will be held on August 9, 2022.