OPENING STATEMENT: “…Our view is that the allegation that the imposition of bail terms barring the appellant (Governor) from County offices was tantamount to a removal from office is therefore unfounded,” per Court of Appeal (Musinga, Murgor, and Gatembu, JJ.A) in Moses Kasaine Lenolkulal vs R, Criminal Appeal No. 109 of 2019, Page 18.
- The Anti-Corruption Chief Magistrate Hon Douglas Ogoti in issuing bail terms barring Nairobi Governor Mike Sonko from accessing his office quoted pronouncements of High Court Judges Justice Mumbi Ngugi (in Governor Lenolkulal Case) and Justice G.W. Ngenye-Macharia (in Governor Waititu case), both decisions were appealed and upheld in Court of Appeal.
- Hon Douglas Ogoti made the following ruling: “This Court by virtue of the above pronouncements of Ngugi J and Ngenye J directs that accused 1 (Mike Sonko) be barred from office. If need be he can be escorted to his office by the investigating officer in this case or any other authorized officer to enable him to gain access and pick his belongings.”
- On the one hand, Hon Ogoti quoted paragraph 60 of Ngugi J judgment in Moses Kasaine Lenolkulal vs. DPP (2019) eKLR where she stated: “I accordingly decline to exercise powers of revision over the decision of the trial court in the matter. The terms set for the applicant’s (Lenolkulal) access to his office shall remain in force for the duration of the trial.”
- On the other hand, Hon Ogoti also quoted G.W. Ngenye-Macharia J’s decision in the Ferdinand Ndungu Waititu Babayao & 12 Others vs. Republic (2019) EKLR which she made upon considering the application for revision of bail terms barring Governor Waititu from office as issued by the Trial Court.
- Ngenye J is quoted in Hon Ogoti ruling stating: “In the premises, I find no irregularities, impropriety, illegality or incorrectness in the order of the learned trial magistrate in directing the 1st Applicant (Waititu) to not set foot in the offices of the County Government of Kiambu whilst the trial is ongoing save for the window accorded by this court to go and collect his personal belongings.”
- As noted, both the above High Court decisions were appealed and upheld by the Court of Appeal (Musinga, Murgor, and Gatembu, JJ.A) who clarified that the Governors barred from office are still Governors for all intents and purposes being neither suspended nor removed from office.
- In Moses Kasaine Lenolkulal vs Republic, the Court of Appeal found that “the bail terms did not remove the appellant (Samburu Governor) from office, but merely required compliance with constitutionally sanctioned terms that of necessity limited his access to the County Offices until the determination of the trial…” (Page 22 & 23)
- The Court of Appeal in the Governor Lenolkulal case left no doubt that it understood Governor being “barred from office” to simply mean “bar from accessing county offices” by addressing the possible power vacuum that would be occasioned by the inability of the Governor to access the County Offices and finding “there would be no vacuum in the County Offices.” (page 23).
- In the Ferdinand Ndungu Waititu Babayao vs Republic Appeal, Court of Appeal held that “…neither the trial magistrate nor the learned judge’s holding purported to remove or suspend the Appellant from the office of Governor… The Appellant has not been suspended from his office, he is still the Governor… he is still entitled to his full pay, not half.” (Paragraph 44).
- As Court of Appeal concluded in Lenolkulal Appeal: “…Limiting the governor’s access to the County offices whilst he is facing trial for corruption offenses cannot be construed or equated to removal from office. The governor has not been ordered to vacate his office. He may access his office but on conditions imposed by the Court. Though his access is limited, he remains the Governor.” (Page 18)
CLOSING STATEMENT: “Sonko is the Governor of Nairobi in form and substance… de facto (in fact) and de jure (in-law),” per Ahmednasir Abdullahi SC tweet (on Governor Waititu) dated Friday, 20th December 2019 commenting on the Court of Appeal Judgements in the Governors Lenolkulal and Waititu appeals.