Kenya: Top Court Allows Waititu to File More Documents

25 September 2020

The Supreme Court has allowed former Kiambu county boss Ferdinand Waititu to file more documents in a case where he is seeking clarification on whether a governor's denial of access to office amounts to removal from power.

A five-judge bench, led by Chief Justice David Maraga, said a Supplementary Record of Appeal that Mr Waititu had filed out of the stipulated timelines should be deemed as properly lodged.

While allowing Mr Waititu's application for extension of time, the judges said the politician had provided sufficient grounds and reasons.

They found that Mr Waititu's delay in filing the documents was because of his inability to obtain the Court of Appeal's order that upheld lower courts' decision to deny him access to office, leading to impeachment.

There was also delay in getting the certified copies of typed court proceedings from the Court of Appeal despite a request Mr Waititu made on December 30, 2019.

"The delay in obtaining the order and certified typed copies of proceedings from the Court of Appeal is an administrative issue that cannot and should not be held against the petitioner," said the Supreme Court judges by a unanimous decision.

In the ruling, the court also noted that the Office of the Director of Public Prosecutions (ODPP) was neither opposed to Mr Waititu's request nor did it show what prejudice would be caused if the application was allowed.

Other members of the bench were Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u and Isaac Lenaola.

Mr Waititu is challenging judgment of the Court of Appeal that upheld decisions of the High Court and Magistrate Court to bar him from accessing office after being implicated in graft. Should the Apex Court rule in his favour, the judgment will come as a relief to the county bosses.

The former governor argues that the appellate judges erred in law by upholding the order of Justice Mumbi Ngugi directing him not to set foot in his office until the graft case was heard.

Through Senior Counsel Tom Ojienda, Mr Waititu said the condition amounted to a constructive removal of the governor from office and was a violation of the Constitution.

"To deny the appellant access to his office is to impair his ability to discharge his functions and responsibilities and amounts to his suspension from exercising his statutory roles as Governor," Prof Ojienda submitted.

He added that there is absolutely no law that empowers a court to occasion a vacancy in the office of a Governor or suspend his statutory duties, functions and powers through the imposition of bail terms and conditions.

The lawyer cited section 62(6) Anti-Corruption and Economic Crimes Act (ACECA), which states that 'this section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.'

According to the professor, a holder of a constitutional office such as governor can only be removed or suspended from office in accordance with the laid down constitutional procedure.

He urged that although Justice Mumbi had indicated that her approach to the interpretation of the various relevant provisions of the Constitution was holistic, the said approach was at odds with the principle of harmonization as a cannon of interpretation.

"The learned judge ought to have borne in mind the provisions of Articles 181 and 182 of the Constitution instead of limiting her interpretation to Article 49(1)(h) regarding the right to bail," said Prof Ojienda.

He argued that Justice Ngugi should have interpreted section 62 (6) of ACECA literally by granting an exemption to constitutional offices from suspension on their arraignment in court on corruption or economic crime charges.

But appellate judges Justices Daniel Musinga, Gatembu Kairu and Agnes Murgor disagreed with the Professor and ruled that being barred from office is not is not tantamount to a removal of the Governor from office.

In the disputed judgement dated December 20, 2019, the three judges sided with the decision of the lower courts that barring the governor from office was only "intended to ensure the integrity and credibility of this trial and to ensure the public interest is safeguarded".

"In our view, to the extent that neither the trial magistrate nor the learned judge's holding purported to remove or suspend the appellant from office of Governor Kiambu County," the appellate judges said.

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