The Supreme Court on Friday, July 16 declined to give its advisory opinion to the Nairobi County Government concerning the question of filling the governor's office.
In an application filed by the county assembly clerk to the apex court, the Nairobi County Assembly asked it to advise on what happens when the speaker of the county assembly declines to assume the office of the governor.
A five-judge bench led by Deputy CJ Philomena Mwilu declined to render advisory opinions stating that it agreed with the Attorney General that the question is hypothetical as it was yet to happen.
"We shall not, therefore, exercise our jurisdiction in hypothetical situations," read the court ruling.
Article 182 of the Constitution of Kenya (2010) states that where a vacancy occurs in both the office of County Governor and that of Deputy Governor, the speaker of the County Assembly assumes office as a governor for a period of 60 days before elections are held
They also ruled that the county assembly clerk did not have the locus standi (the right or capacity to bring an action to court) to request an advisory opinion from the Supreme Court.
The court explained that a request for an advisory on matters concerning a county government could only be done by the national government or any state organ or a county government as described in Article 163(6).
In response to the question on the absence of gazetting the resignation of Deputy Governor Polycarp Igathe, the court responded that the question can be dealt with through the advice of the Attorney General or by the courts below.
In May 2018, the Supreme Court led by David Maraga issued an advisory opinion to the County Government of Embu on the replacement of deputy governors.
This was because the application had met the required threshold: the application was made by the County assembly speaker, whose office is considered a state organ. The county assembly had also sought an opinion from the Attorney General and that the issues raised were not a subject of proceedings of a lower court.
They added that the matter would then reach them through a normal appellate mechanism.
On July 6, 2021, the Court of Appeal barred the swearing-in of Deputy Governor Anne Kananu as the governor of Nairobi pending the hearing of a case by Mike Sonko and Okiya Omtatah.
Sonko made an application to appeal a High Court ruling which declared that the nomination, vetting, and swearing-in of Kananu was done in accordance with the law.
The appellant court will make its ruling on October 22, 2021.
