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Former Nairobi Governor Mike Sonko has suffered yet another setback after the Court of Appeal declined to stop Nairobi Deputy Governor Anne Kananu from being sworn in as the substantive Governor.

Appellate Judges Wanjiru Karanja, Justice Jessie Lessit and Justice Jamila Mohammed on Friday rejected to issue conservatory orders retraining the state from swearing in Kananu saying application by Sonko on grounds  lacked merit.

The judges declined to issue the interim orders saying that the issue of the swearing in of  Kananu was not raised in the High Court and the impugned judgment did not address or determine that issue.

“We note that the issue of the swearing in of the 11th respondent was not a ground of appeal in the applicant’s draft memorandum of appeal. In the draft memorandum of appeal, the applicant impugns the decision of the High Court which failed and/or refused to overturn the impeachment process and the impeachment of the applicant herein,” the three judge ruled.

The decision comes after Sonko who was impeached last year, moved to the court of appeal to challenge the decision of High court judges Weldon Korir, Said Chitembwe and Winfrida Okwany who dismissed his application challenging his impeachment.

Through his lawyers led by Harisson Kinyanjui argue in the appeal by the superior court failed to find and hold that by the time the members of Nairobi County Assembly impeached Sonko there was an existing court order stopping any action against him.

“That pending the hearing and determination of the intended appeal herein, an injunction or conservatory order do issue restraining anybody or any state organ or authority from swearing in Ann Kananu Mwenda as governor of Nairobi County,” Sonko argued in his appeal

Nevertheless, the Attorney General had opposed the appeal pointing out “that Sonko has not been in office for at least ten months; and is effectively no longer the Governor of the County, and if the court hearing the substantive appeal find that the three has been a violation of his political rights, then those violations, since they will be personal to him, can be vindicated by way of an order of damages,” Kihara said.

The court of Appeal has also declined to make a substantive finding on how Sonko was impeached as the governor of Nairobi or issue any directive to have him not interfere with the running of Nairobi County.

“We do not want to make substantive findings on the merits of the removal of the applicant from office, as it is not our role to do so at this stage,” the judges ruled.

On June 6 this year High Court judge Chitembwe, Okwany and Korir upheld Kananu swearing as governor saying that her nomination, and subsequent swearing-in as deputy governor were within the law.

The three-judge bench also found that the impeachment of Sonko was constitutional and that his case challenging his removal lacked merit.

The High court threw out Sonko’s argument that he had not been properly informed about his impeachment and that he was not given a chance to adequately defend himself against allegations levelled against him by the assembly.

Justices Chitembwe, Okwany and Korir ruled that Sonko never withdrew Kananu’s nomination as deputy governor, as he had alleged.

They found that the attempt to withdraw Kananu’s nomination by Sonko was unlawful and had an ill-motive behind it.

“Before his impeachment, Sonko had voluntarily nominated Kananu as deputy governor, but later after his impeachment, decided to withdraw her nomination,” the judges ruled.

The court also ruled there was appropriate public participation in Kananu’s vetting, dismissing the arguments by Sonko that there was no public participation.

On the issue of being sworn in by the acting governor, the court said even though that is unlawful, this case was different.

“Under normal circumstances, the speaker who is the acting governor holds office for 60 days as he waits for a by-election, but in this case there was a nominated deputy governor in place before the governor was impeached,” the judges ruled.

The judges said they were not dealing with a perfect case scenario ruling and had Kananu been vetted or disapproved, the current predicament would not have arisen. The bench also upheld a decision by the county assembly to impeach Sonko.

They further said the Senate also followed due process in his impeachment and he was given a fair hearing.

The court noted that 88 MCAs signed the motion to impeach him, and none of them went to court to dispute their signatures.

They ruled that each MCA signed against his or her name. Only 44 were needed, so they surpassed the required number.