This is the question that left tongues wagging in the first round this potentially volatile case, after Nairobi Governor, Mike Sonko, chose to fight off claims of impropriety by questioning the authority of a court to adjudicate a recourse seeking a compulsion order for scrutiny and a day-lit audit of the county coffers.
He has asked a judge, through his lawyer Harrison Kinyanjui not to get to the hearing of the case by Makongeni MCA Peter Imwatok who appears to lift the lid on the alleged fraudulent payments curved out on a sensational affidavit lodged in the course.
Sonko’s lawyer said the court has no jurisdiction, as in it has no mandate to entertain the proceedings, a thing that sometimes offers a safety valve in potential-politico-keg cases…with a rider that concerned authorities have a duty to investigate!
Exhaust all avenues
Kinyanjui may draw more blood if the judge chooses to uphold an argument in his objection on grounds that “the petitioner failed to exhaust all avenues for ventilation of his perceived grievances, before turning to the court, “by reason of which the petition ought to be struck out by costs” in favour of Sonko.
He is referring to the internal arbitration mechanisms, the runaway toothless public procurement appeals boards of which Imwatok scoffs only deal with the tenderer, of which he was not, and again this is a matter of which “taxpayers may have lost a total of Ksh1.8 billion through irregular and illegal procurement of insurance covers.”
Imwatok says he joined the fray as a just course- for public interests sake.
“The petition essentially is an oblique appeal on a procurement decision of Nairobi City County and hence not to have been lodged as an appeal to the relevant entity so vested under statute,” the prolific lawyer says in papers lodged in court.
Kinyanjui also states that the petition has no merit and is an extension of an extortion scheme against Sonko and the rest of the respondents.
Relief sought in a vacuum
He stokes the heat and states that the Motion is not anchored on any “Statutory or Constitutional provisions by reason of which this court cannot grant the relief sought in a vacuum.”
“This court, with all due respect, does not have jurisdiction to hear this matter and we will be filing a preliminary objection as to why it should not hear this case,” Kinyanju’s said.
Justice Ong’udi directed Sonko’s lawyer to file his objection by May 7 2018 and return to court on May 15 2018 for hearing. “Parties to file their preliminary objection and replies by end of business on Monday in readiness for hearing,” judge Ong’udi ruled.The court will deal with the issue of jurisdiction first before turning to the main application that seeks that a compulsion order be issued against the county government for a comprehensive audit of its
accounts concerning the alleged fraud.
Unfit for public office
Imwatok, the assembly minority leader, claims that the Nairobi City County administration authorised irregular procurement in the 2016/17 and 2017/18 financial years.
He sued late last month over the loss of Sh1.7 billion tender awarded to AAR Insurance Company for a health cover for the county staff.The MCA has also urged the court to declare the former county secretary Simon Morintant, and former finance chief Veska Kagongo unfit for holding a public office owing to the said irregularities.
He is also seeking an order to have all funds paid to AAR Insurance Company with respect to the two extensions of July 1, 2017 to September 30, 2017 and October 1, 2017 to December 31, 2017 returned to the county.
The objection also touches on the quality of the affidavit filed against the Governor and the county government.
Lawyers representing Sonko alluded that it may be futile to hear the application in light of the shortcomings that they highlight concerning the affidavit sworn by the MCA on the hearing date.
“The petition has no evidence offered in support, there being no exhibits…” Kinyanjui’s filings read.
Should the court rule it has no jurisdiction, the petition would then be struck out.