Governor Mike Mbuvi Sonko has filed a petition against Anti-corruption Chief Magistrate Douglas Ogoti and five others over the decision to bar him from accessing his office.
In a certificate of urgency, Sonko says that the magistrate’s decision was unconstitutional and misuse of judicial power.
CM Ogoti ordered the Governor not to step into his office after he was charged with over 30 corruption related charges.
Through lawyer Harrison Kinyanjui, the county boss wants the High Court to issue conservatory orders suspending the enforcement of the bail terms, prohibiting him from accessing his office or compelling him to remove his personal items.
Other respondents in the petition are the DPP, Inspector General, National Police Service, EACC, Attorney General and the Nairobi County Speaker.
According to the Governor, the Magistrate’s decision to order he be escorted to his office to remove his personal items was unlawful, without any legal backing and amounted to an order directing him to vacate his elected post.
He accuses the Magistrate of effectively converting his office as such magistrate into that of Parliament to legislate obliquely, which is a blatant violation and disregard of Article 94 of the Constitution.
“For the court to create and impose on him a non-existent bail term not within the contemplation of Section 62(6) of the Anti-Corruption and Economic Crimes Act, is a gross violation of the right conferred on the Petitioner under Article 50(1) of the Constitution,” argues Kinyanjui.
Sonko further argues that the decision by CM Ogoti is unconstitutional and in violation of his right to the presumption of innocence.
He said there is arising imminent threat of his ouster, exposing him to the threat of impeachment by the Nairobi City County Assembly for prolonged absence from his official duties and the court should therefore intervene and stop this “constitutional hemorrhage”.
According to him, it could never have been the purpose of Article 181 and 182 of the Constitution to afford the court an oblique, unilateral right to constructively oust Sonko office on the basis of an indictment based on mere suspicion of an alleged economic crime through criminal process at the nascent stage, with bland allegations against him contained in a charge sheet, which has not been subjected to the evidential rigours of a trial.
“This unconstitutional act on the part of the magistrate at the behest of the DPP, National Police Service and EACC constitutes an ouster of Article 25(c) of the Constitution yet the said right is non-derogable,” he said.
The Governor wants the court to compel Director of Public Prosecution Noordin Haji to designate what aspect of the Nairobi City County constitutes the scene of crime in respect of the case he is facing.
He further avers that he is entitled to due process of the law and that any matter ought to be adjudicated in a lawful, fair, and just manner as enshrined in the constitution.