Governors have lost a case in which they sought to have immunity from facing corruption charges and being locked out of offices.
This is after the High Court dismissed the petition that sought to shield them from suspension.
The decision by Justices Grace Nzioka, James Wakiaga and Esther Maina is a big blow to the county chief executives who were fighting to save their colleagues who have been barred from accessing their offices after being charged with corruption cases.
The judges ruled that barring governors from accessing their offices while facing corruption and other criminal charges do not amount to removal from office but to protect the integrity of the court process and stop them from interfering with evidence.
“The Constitution clearly provides procedures for which a governor can be removed from office and we come to the conclusion that barring them from their offices is not unlawful and does not amount to removing them from office through the back door,” ruled the judges.
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According to the judges, the Supreme Court had already determined the issue of locking out governors from office and that they cannot interfere with the decision of the apex court.
They added that some of the magistrates who locked out the governors from office after being charged only did that as a condition for their release on bail and that the accused governors can still apply for a review of the conditions before the trial courts if they find them untenable.
“We agree with the Supreme Court that the bond terms barring governors from accessing office or stepping aside do not amount to removal from office. It is also not discriminatory or unlawful but a condition only attached to their release on bail,” ruled the judges.
Some governors who have been barred from accessing their offices after being charged with corruption include Samburu Governor Moses Lenolkulal, Garissa Governor Ali Korane, Tharaka Nithi’s Muthomi Njuki and Migori Governor Okoth Obado.
Others are former Nairobi Governor Mike Sonko and former Kiambu Governor Ferdinand Waititu who were barred from office before they were subsequently impeached by the respective county assemblies.
At the same time, the three judges also dismissed a case by Sonko which challenged his prosecution on account that the evidence of his bank accounts were illegally obtained by the Ethics and Anti-Corruption Commission.
“We are not able to arrive at a conclusion that Sonko’s rights to privacy, dignity, equality before the law and non-discrimination were violated when investigators accessed his accounts. In any case, he will have a chance to raise the issues in his defense during the trial,” ruled the judges.
They added that Sonko’s arrest, detention and subsequent charges were lawful and that they cannot interfere with the process of prosecuting other governors implicated in corruption.
The petition was filed by the Council of Governors arguing that the anti-corruption courts, the Director of Public Prosecution and EACC have been discriminating governors charged with corruption and other criminal cases by asking them to stay away from offices while other State officers continue serving.
According to the governors, there is no law that provides for their suspension while in office.
