Acting Chief Justice Philomena Mwilu has appointed a three- judge bench to hear nine petitions that seeks to quash the nomination and appointment of Nairobi Deputy Governor Anne Kananu Mwenda.
will be heard and determined by a three-judge bench due to the novel questions of law raised by the petitioners.
Mwilu has appointed Justice Juma Said Chitembwe the presiding judge of the bench while members are Justices Weldon Korir and Wilfrida Okwany.
The petitions, lodged by various individuals and organizations including Law Society of Kenya (LSK) and Human rights activist Okiya Omtatah, are also challenging Ms Mwenda’s possible ascension to the office of the governor following the impeachment of embattled former governor Mike Sonko.
Mwilu constituted the bench following an order by Justice Anthony Mrima for empanelment of a multi-judge bench.
Judge Mrima, who also recused himself from all cases touching on the governorship of Nairobi over claims of bias, found that the petitions raise fundamental issues of law.
Among the questions that emerged is whether a deputy governor who comes into office during a time when the governor, who is impeached and who is actively challenging the impeachment proceedings, can ascend to the position of the governor.
Another question is what will happen if the deputy governor ascends to the office of the governor and the impeached governor succeeds in challenging the impeachment proceedings.
Justice Mrima said the unique circumstances in the leadership of Nairobi county government also involve a constitutional lacuna and the cases introduced a novel scenario.
Article 182 of the Constitution, which deals with vacancy in the office of county governor, mainly focuses on the absence of a governor and the deputy governor and that a by-election follows thereafter.
But it is silent on what happens to a legal process for the nomination of a deputy governor which is in place by the time the governor leaves office.
“The constitution and the law is silent. The constitution did not contemplate such a situation and, as a result, there is no provision on the way forward. That is a constitutional lacuna,” said Justice Mrima.
The judge explained that the only way to deal with the lacuna and in the public interest was to allow the nomination process, which had been legally initiated, to proceed.
While disqualifying himself from handling any case touching on the dispute, the judge noted that his earlier ruling to allow vetting of Ms Mwenda by the county assembly sparked mixed reactions.
He also observed that the whole matter on the leadership of the Nairobi City County has elicited enormous public interest.
One of the reactions after the delivery of the ruling was the filing of a complaint at the Judicial Service Commission (JSC) on the grounds that the court was biased.
“The filing of a complaint per se does not preclude a court from dealing with the matter. It all depends on the circumstances of the case. There are instances where, depending on the nature of the matter and in order to enhance public confidence in the administration of justice, a court may consider recusing itself from that particular matter. That is the position I opt for in this matter,” Justice Mrima.
However, he explained that in allowing the vetting process to continue, the court acted in the best interest of Nairobi County and of the country at large and in the public interest. He said the court had no option but to avoid a looming constitutional crisis.
This is because when the court suspended a decision of the Independent Electoral and Boundaries Commission (IEBC) to call a by-election, it meant that IEBC would not proceed with any of the preparations towards the holding of the by-election.
The petitions will be mentioned before the bench on February 25.