The man, namely Patrick Kiiru, and listed in the petition as a voter in Nairobi has also prayed the court to stop the forthcoming Nairobi gubernatorial by-election.
His actions come as another petitioner namely Peter Agoro who had separately challenged the nomination of Anne Mwendwa as the city’s deputy governor withdrew the petition. Mwendwa is the Nairobi Disaster Management Chief Officer.
Under a certificate of urgency, petitioner Kiiru has argued that Igathe’s resignation was not formally communicated to the Independent Electoral and Boundaries Commission (IEBC) hence there is no vacancy in the office.
As such, Kiiru wants the court to pronounce itself on the matter and allow Igathe to assume office until 2022 when the current term of office of governors expires.
Kiiru also argues that a gazette notice by IEBC setting the date for Nairobi gubernatorial by-election is not only irregular but also premature as its publication is premised on a wrongful interpretation of the Constitution and the law on filling a vacancy in the office of the governor in case one occurs in circumstance such as the instant.
The petitioner goes ahead to point out that the electoral agency has officially confirmed it wasn’t aware of the vacancy in the office of the deputy governor, it can only be said that the gazette notice by IEBC was based purely on hearsay and media reports as opposed to the law.
“There being no vacancy in the office of the Deputy Governor, Igathe ought to have assumed office for the remainder of the governor’s term as contemplated under Article 182(2) of the Constitution,” read in part the petition by Kiiru.
IEBC and the Attorney General have been listed as the respondents in the petition before the Nairobi Constitutional and Human Rights court.
Acting Governor Benson Mutura, Igathe, Nairobi County Assembly, Jubilee Party, and Nairobi County government have been listed as interested parties.
Further compounding matters, Majority Whip Paul Kados – in a sworn affidavit – on behalf of the assembly, said the resignation of Igathe only came up in the media in January 2018 but was not communicated to the speaker of the assembly as contemplated by the Constitution.
Article 182 of the Constitution provides that one of the ways that a vacancy can occur in the office of the governor and by extension that of the deputy governor is through resignation.
Such resignation ought to be communicated in writing to the office of the speaker of the county assembly.
Further, Kados said IEBC in January 2020 said it was not aware of a vacancy in the office and this was the assembly’s position until December 21 when the electoral commission gazetted a by-election in Nairobi compounding the question of the vacancy even after having said it was not aware of any vacancy.
“There is no clear standpoint as regards a vacancy in the office of the deputy governor and it is important for the court to give a decision on this legal issue before a by-election is conducted to avert a crisis whereby a new governor would be elected when there is already one in office,” said the Mihang’o MCA.
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