Governor Charity Ngilu will have to face her accusers at the Kitui County Assembly after the High Court Thursday declined to stop her impeachment process.
Justice Weldon Korir dismissed the petition by Mrs Ngilu challenging the impeachment motion filed by Majority Leader Peter Kilonzo effectively vacating ex-parte conservatory orders he had granted last week.
The judge ruled that the petition lacks merit and that whether the constitutional threshold of public participation as enshrined by Article 10 of the Constitution had been met by the assembly, can only be determined by the Senate.
"The issue as to whether the constitutional threshold has been met will be considered by the Senate, which acts like an Appellate Court.
"The allegation by the applicant that the impeachment has been brought in bad faith will also be addressed by the Senate which is duty-bound to consider the merits of the impeachment," he ruled.
Justice Korir said although courts are mandated to intervene in the process where there is alleged denial or violation of, or threat to a right or fundamental freedom it should only engage its powers where there is clear and imminent threat to the Constitution.
"It is important to note that impeachment is a tool used to oversight the county executive and a county assembly is carrying out its constitutional mandate in debating an impeachment motion" the judge said.
Quoting heavily on similar past cases, including the recent impeachment of Kirinyaga Governor Anne Waiguru which he handled, Justice Korir ruled that impeachment proceedings are by nature a trial by peers and that Mrs Ngilu will have a chance to defend herself at the Assembly and at the Senate.
"I therefore do not find merit in the Applicant's argument that the impeachment motion should be stopped because the threshold for impeachment has not been met or that the proceedings have been commenced in bad faith." he ruled.
Governor Ngilu moved to court on June 25, seeking to halt the impeachment process. She sued the county assembly and both the speaker and clerk of the assembly, who were listed as the first, second and third respondent, respectively.
She argued that her constitutional rights under Articles 27, 28, 40, 47 and 50 of the Constitution had been violated and that she had been condemned unheard.
The Governor told the court that her rights to a fair administrative action and fair hearing under Article 47 of the Constitution of Kenya 2010 were being infringed by the County Assembly.
Earlier, Justice Korir dismissed another application by six residents whose nominations to the County Public Service Board by Governor Ngilu were rejected by the County Assembly two months ago, and who wanted to be enjoined in the impeachment case.
The six who included Francis Muinde Kiliku, Jane Mwende Kibati, Bernard Munyasya, Joseph Kyavoa, David Munyao and Esther Kasyoka Muthui claimed that the impeachment of the Governor concerns them as Kitui voters and nominees to the board.
The ruling paves way for a showdown between Wiper MCAs who are the majority in the 54 member County Assembly and Governor Ngilu loyalists, when the motion is finally tabled.
Wiper party which enjoys a majority of 30 elected and nominated MCAs and must garner the requisite two thirds majority of 36 votes to see the motion through.
On the other hand, Mrs Ngilu's Narc party has 12 members but enjoys support from Jubilee party which has three MCAs and other smaller political parties and independent MCAs.
Minority leader Alex Nganga said the Governor's camp had support of 22 MCAs and they were certain of defeating the motion but Mr Kilonzo, the mover of the motion says he too has the numbers.
Mr Nganga dismissed the grounds for the impeachment motion as a "concoction of lies and fake narratives" which cannot be substantiated and that the burden of proving the allegations was on back of the Wiper party.
Last week, Deputy Speaker Kasee Musya was yesterday removed from office as Wiper party cracked the whip against disloyal members opposed to Governor Ngilu's impeachment.
Mr Musya the MCA for Kisasi ward in Kitui rural constituency was voted out only days after refusing to support the impeachment motion. He has been critical of his party colleagues whom he accused of blackmailing Governor Ngilu.
He criticised his party for acting with vendetta after Wiper MCAs ganged up to reject Mrs Ngilu's County Public Service Board nominees which he supported.
Another Wiper MCA James Musyoka from Kiomo Kyethani ward in Mwingi West constituency also announced he'll not support the impeachment motion, further casting doubts on Wiper party ability to marshal enough numbers to pass the motion.
The MCA told the Nation that the allegations of impropriety and abuse of office levelled against the governor lacked evidence and therefore didn't meet the threshold set out in law to warrant impeachment.
"We must be objective and truthful. I cannot support that motion because the people who elected me at ward level are against it" he said adding those voters are the same who elected the governor.
He said the assembly was deeply divided between MCAs from Mwingi and Kitui regions and that this was negatively polarising the county.