- Petitioner Benson Njuki had argued that the Supreme Court's advisory opinion could not be used retrospectively in treating a vacancy that already existed.
- But Justice Abigail Mshilla ruled that the advisory opinion, explaining how the vacancy should be filled, was sufficient and binding in law.
- Justice Mshilla also noted that once the process of nomination ends and the name of the nominee is gazetted, any challenge to the appointment can only be through an election petition, not a constitutional petition.
The High Court has dismissed a petition challenging the Nyeri governor’s decision to appoint a deputy without waiting for Parliament to pass a law on how to fill the position.
Justice Abigail Mshilla ruled that the Supreme Court's advisory opinion, explaining how the vacancy should be filled, was sufficient and binding in law.
Justice Mshilla said the advisory, dated March 9, 2018, not only applied to the filling of vacancies in future but also those that existed before it was issued.
Petitioner Benson Njuki had argued that the advisory opinion could not be used retrospectively in treating a vacancy that already existed.
Mr Njuki said Governor Mutahi Kahiga was supposed to wait for Parliament to pass the County Governments Amendment Bill before nominating Caroline Karugu as his deputy.
The vacancy occurred after Mr Kahiga was sworn in as county boss following Governor Wahome Gakuru's death on November 7, 2017.
“At the time the deputy’s office fell vacant, the Constitution did not have any provision for filling the position and neither was there a legislative provision,” Mr Njuki said in the constitutional petition.
But Justice Mshilla, while concurring with lawyer Richard Kamotho for Mr Kahiga and Ms Karugu, ruled that retrospective application of the law is allowed mostly where it affects a procedure.
Mr Kamotho submitted that the advisory opinion was a binding, authoritative statement of law, guiding the conduct of all governmental or public action.
“The advisory opinion was on a procedure and any retrospective application would have been lawful and valid. The Supreme Court did not state the commencement date of the advisory opinion and it goes without saying that this court cannot be the forum to determine this issue,” stated Justice Mshilla.
The judge also found that the constitutional court was not the proper forum to challenge the legal procedure as well as the validity of the advisory's applicability.
She said the petitioner’s arguments arose from the nomination process.
In his prayers, the petitioner wanted the court to issue an order annulling and declaring the process unprocedural and unconstitutional, as he raised questions on Ms Karugu’s eligibility and qualifications.
But Justice Mshilla said once the process of nomination ends and the name of the nominee is gazetted, any challenge to the appointment can only be through an election petition, not a constitutional petition.
“The petitioner chose the wrong forum to address his grievances on the propriety of the nomination process. The prayers sought can only be ventilated by way of an election petition," she said.
She added that the court was not duly constituted as an election court and therefore lacked jurisdiction to entertain Mr Njuki’s petition.
In the advisory opinion, which has since been applied in Nairobi, Bomet and Kiambu counties, the Supreme Court ruled that governors should nominate a person to fill the deputy governor’s vacancy within 14 days.
The vacancy may occur from death in office, resignation or an impeachment.
The nominees have to be approved by county assemblies within 60 days and, if successful, they then take the oath of office.
The judges said the position of a deputy governor cannot be filled through another election but admitted that the Constitution was not clear on the process.