The lawyers argued that the hurried elevation of Kananu to the office of Deputy Governor is in direct violation of the Constitution of Kenya and demeans the power of the people in democratically electing their Governor and deputy governor.
Havi argued that along with violating numerous Articles of the Constitution, Kananu’s swearing-in subverts the County Governments (Amendment) Act 2020, the County Governments Act 2012, the Public Appointments (County Assemblies Approval) Act 2017, and the Assumption of The Office of Governor Act 2019.
“…I verily believe to be true that the swearing into office of Anne Kananu Mwenda as Deputy Governor is problematic, unconstitutional and a brazen attempt to undermine the process of a by-election as anticipated in Article 182(5) of the constitution of Kenya,” Havi stated in his petition.
Article 182 (5) stipulates that at the point of the vacancy occurring at the office of the governor, there was no deputy governor to perforce assume the office of the governor for the remainder of the term. The issue regarding the existence of the vacancy in the office of deputy governor at the time when the Governor ceases to hold office cannot be disputed.
“…the nomination of Anne Kananu Mwenda before the vacancy occurred in the office of the Governor creates legal rights that can be revived and completed even after the vacancy has occurred in the office of the governor.
“I verily believe to be true that the uncompleted process of vetting of Anne Kananu Mwenda cannot be revived because this would create legal absurdities. In addition, these consequential acts will deeply undermine the constitutional objectives of a by-election,” Havi petitioned.
LSK stated that Kananu’s swearing-in is a calculated political move to avoid a by-election in Nairobi, further arguing that the move sets a dangerous precedent in the application of the rule of law.
Kananu’s swearing-in allegedly subverts the Assumption of Office of Governor Act 2019, on grounds that it violated the entire act except for the swearing-in by High Court.
“The Law Society of Kenya is appreciably apprehensive that because there is a vacancy in the office of the governor, the respondents (Kananu, County Assembly of Nairobi, Speaker Benson Mutura) are likely to proceed to commit illegalities by swearing in Anne Kananu Mwenda as the Governor of Nairobi City County who will, in turn, nominate another person for appointment as Deputy Governor,” Havi’s petition read in part.
LSK in the petition argues that Kananu’s nomination to the office of DG was annulled by Sonko’s ouster, and anything thereafter is illegal.
Kananu’s vetting, according to LSK, could not be revived after Sonko was impeached as it undermines constitutional objectives of a by-election as stipulated by article 182(5) of the Constitution of Kenya.
The LSK Boss further petitioned that Kananu cannot be sworn into office without a statutory appointment, and that Speaker of the County Assembly who is also the acting Governor does not have constitutional powers to appoint a deputy governor.
The High Court thus moved to halt Kananu’s swearing-in, pending the determination of the petition.