The High Court will today determine whether former Nairobi Governor Mike Sonko was lawfully impeached by the county assembly and Senate -- a verdict he hopes will reinstate him to the position.
A three-judge bench handling a consolidated case on the impeachment of Mr Sonko and vetting, appointment, swearing-in and assumption of office of Deputy Governor Ann Kananu will deliver judgment on the cases.
The bench, appointed by Deputy Chief Justice Philomena Mwilu, comprises judges Said Chitembwe, Weldon Korir and Wilfrida Okwany.
The cases had been filed by Mr Okiya Omtatah, the Law Society of Kenya, Thirdway Alliance, and Ms Kananu, among others.
The former City Hall chief's legal team is exuding confidence that they have presented a watertight case and Mr Sonko's impeachment will be nullified.
Lawyer Harrison Kinyanjui said the team holds that the censure process had no legal basis, with the county assembly Speaker and the clerk allegedly being unable to tender evidence to show that they acted within the law.
He pointed out that they argued that there was no substantive clerk, hence there was no basis for the impeachment Motion to proceed, because an acting clerk cannot assume the conduct of the process.
Further, he said, the legal team submitted that there being no substantive governor, Ms Kananu should not have assumed office as deputy governor.
"An impeachment is not a political process, but is governed by the law. We presented a case that was beyond impeachment and we are confident the judgment will be in our favour," said Mr Kinyanjui.
"Even more recently, hitherto clerk Jacob Ngwele secured an order having Edward Gichana out of office with the Court of Appeal holding that he had no basis being in office as the clerk," he added.
Eighty-eight out of 122 MCAs voted in favour of removal of Mr Sonko from office on December 3, 2020, with only two of them voting against the impeachment.
For his part, the former Makadara MP held that he had flown 57 MCAs to Kwale in a bid to defeat the impeachment. The Senate would later uphold the decision by the assembly.
"He has expectations that justice will be done. He has faith in the courts and is ready for whatever outcome the court will deliver," said Mr Sonko's spokesperson, Mr Ben Mulwa.
Interestingly, Mr Sonko's situation is different from other governors who have been impeached, as his office is still vacant after the court stopped the swearing-in of Ms Kananu as his replacement.
Further, failure to hold a by-election on February 18, 2021, as had been scheduled by the Independent Electoral and Boundaries Commission (IEBC), after the court suspended it, which could have seen a new governor elected, could also play in his favour.
For former Kiambu Governor Ferdinand Waititu, his deputy James Nyoro immediately took over after his ouster was stamped. The same also happened in Wajir where Deputy Governor Ahmed Ali Mukhtar also quickly replaced deposed governor Mohamed Muhamud.
It is only Embu Governor Martin Wambora who has had his removal from office, twice in 2014, overturned by the court, even after the Senate's stamp of approval in one of the two impeachments.
Soft political tone
The High Court quashed the first attempt on grounds that a court order halting the impeachment was ignored. The second one, which reached the Senate and was upheld, was later overturned by the Court of Appeal that ruled there was no clear evidence that the governor acted in gross violation of the Constitution.
Lawyer George Kithi, who has acted for both Mr Sonko and Ms Kananu, said that the admission by President Uhuru Kenyatta in January that he instigated the removal of Mr Sonko over his confrontational leadership style, which he said risked bringing services in the capital to a grinding halt, could play a huge part in the direction of the judgment.
"The implication would be that the process was flawed and the Wambora situation becomes imminent," said Mr Kithi.
Mr Sonko has in recent months struck a rather soft political tone towards President Kenyatta, with his posts on social media, painting a picture of a man who may be slowly warming his way back to the President's fold either by design or default.
In the posts, the President's ally-turned-foe has been effusive in his praise of the Head of State and his administration's work, a sudden change of stance for a man who had only in January called Mr Kenyatta "a failed and incompetent President with nothing to show for eight years in power, only succeeding in holding independent institutions at ransom while harassing and tormenting leaders who differ with him".
In one of the posts on Facebook, the former Makadara MP backtracked on his incessant claims that he was coerced by the commander-in-chief to hand over four Nairobi County functions to the national government in February, 2020, cementing speculation that there could be more than meets the eye.
In another, he is calling for unity among leaders in different positions, especially those who have been criticising the government, including himself, to consider burying the hatchet by forgetting past political differences and support the President to complete all the projects he has initiated and give him a big sendoff party when he retires.
"The problem between the two came from people who came with a lot of narratives that Nairobi had failed, to discredit the governor before the President, but it is now evident that those were all lies," said Mr Mulwa.