81
We pause here to emphasize the point that, ordinarily, a person who is impeached and
removed from state office for gross violation of the Constitution is not eligible to hold
any other state office. Article 75 (3) of the Constitution is explicit….
[111] It is from that standpoint that counsel for the 1st, 2nd and 3rd Respondents took the
stance that the Petitioner is not only ineligible but also unsuitable to vie as a candidate
for the position of Governor, Mombasa County. The Petitioner however relied on Article
193 (30 of the Constitution….
[119] A holistic approach of interpretation in essence means that the Constitution
speaks as one harmonious document; and that it is not self-contradictory. Thus.
Article 75, being part of Chapter 6 of the Constitution cannot be read in isolation from
Article 193; granted that Article 193 (2) (g) does provide for disqualification on the basis
of contravention of any of the Chapter 6 provisions. In the premises, we are persuaded
that Article 193 (3) was deliberately put in place by the framers of the Constitution and
by extension, Kenyans, to afford protection to any citizen who has a pending appeal or
review during the pendency of such appeal or review.
[120] Indeed, in the Media Release issued by the CEO of the 3rd Respondent dated 4th
June, 2022, he acknowledged, at paragraphs D that:
The Commission received a report on one aspirant who had been convicted by the
Court and has since appealed the conviction. The commission reckoned that such
an aspirant is protected by the provisions of Article 99 (30 and Article 193 (30 of the
Constitution which stipulates that a person is not disqualified unless all possibility of
appeal and review of the relevant sentence or decision has been exhausted.
[121] It is, in our considered view, discriminatory that the 3rd Respondent would, in the
same breath, deny the Petitioner’s candidature in the face of his pending appeal to the
Supreme Court. Indeed, at paragraph 37 of the 1st Respondent’s affidavit she stated that
the Petitioner failed to present proof of the pending appeal in time; the implication being
that had the documents been availed in time, her decision would have been different.
Her averments at paragraphs 36, 37, 38, 39, 40, 41 and 42 of the Replying Affidavit sworn
on 1st July, 2022 are explicit enough on this point. She confirmed that the documents
were ultimately supplied on 7th June, 2022 at 4:31 pm by M/s Kirui Kamwibwa & Co.
Advocates on behalf of the Petitioner. The letters are marked Annexures SIY-11 and 12 (i)
to that affidavit. We also note that from Annexure SIY-12 (ii), the 3rd Respondent is the 8th
Respondent in the pending Appeal No. E008 of 2022 before the Supreme Court which
was scheduled for mention on 10th June, 2022. They cannot therefore feign ignorance
of an appeal to which they are parties.
3.5.7.8 However, following the decision of the Supreme Court upholding the impeachment for being in
compliance with the Constitution and the law in Mike Mbuvi Sonko v Clerk County Assembly of
Nairobi, Supreme Court Petition 11(E008) of 2022 (unreported), the IEBC revoked the certificate
of clearance issued pursuant to the decision of the High Court in Petition E027 above.
3.5.7.9 It remains to be seen how the conflict between Articles 75(3), 99(3) and 193(3) will be harmonised
in the future to give effect to the intention of Chapter Six i.e., that the authority assigned to a
state officer is a public trust to be exercised in a manner that demonstrates respect for the
people, brings honour to the nation and dignity to the office, and promotes public confidence
in the integrity of the office on one hand, and right to fair hearing, including review by a higher
court as prescribed by law, on the other.
BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION