, NAIROBI, Kenya, Jan 16 – The High Court has extended conservatory orders blocking the arrest and prosecution of Nairobi Governor Evans Kidero and Women’s Representative Rachel Shebesh until February 7 when further directions will be issued.
Justice David Majanja has now consolidated the two applications which will be heard next month when the politicians will be required to explain why they should not face separate charges for assault and creating a disturbance.
“Conservatory orders are hereby issued restraining the first and second respondents from arresting, charging or otherwise taking any steps to prosecute the petitioners pending the hearing and determination of the petition or until further orders of this court and the hearing of the petition by way of highlighting submissions shall be on February 7th 2014,” the judge ruled.
The Director of Public Prosecutions wants Kidero charged with assaulting Shebesh, who will also face creating disturbance charges following last year’s altercation outside City Hall.
Majanja further declined to enjoin the Nairobi City County and the Orange Democratic Movement (ODM) party in the case, saying the matter is personal.
“The issues raised are outside the scope of these proceedings. They concern the effect of criminal proceedings and the governance structure of the county in the event that the proceedings take a certain course. At the end of the day, charges proffered against the petitioner and the interested parties are personal in nature and they deal with criminal liability of the individual,” he stated.
He indicated that at this stage, the court is not concerned with the political impact of the criminal process describing such arguments as indeed premature.
“On the whole, I find and hold that the joining of the Nairobi City County, the Orange Democratic Movement and the CORD coalition would obscure the real issue in controversy; impose unnecessary costs on the parties. The result of my findings is that the Notice of Motion dated 15th January 2014 and that dated 16th January 2014 are dismissed and there shall be no orders as to the costs,” he said.
Siaya Senator James Orengo who was appearing for ODM argued that the proceedings will have a bearing on the office and status of the Governor and its outcome would affect the CORD coalition.
“These proceedings have a bearing on the office and status of the petitioner and the outcome in one way or another will affect the coalition. The grounds for removal of a Governor include conviction for 12 months or more so the matter may affect the party’s campaigns at the county level,” he explained.
He described the proceedings as an attempt to use the Judiciary to remove the Governor and stated that it was a public matter but he was overruled by the judge.
While giving the directions on Monday preventing the arrest of Kidero, Justice Lenaola emphasised the need for both parties to take the matter seriously.
The two had been given seven days to enter into dialogue and reconciliation over the September assault saga, or face charges.
Shebesh through her lawyer Cecil Miller indicated that she tried to communicate with the Governor with little success and was now ready to be charged to ensure a speedy conclusion of the matter.
He filed an affidavit indicating that follow-up phone calls made to Kidero’s office went unanswered and there wasn’t response to a letter he dispatched on Friday last week.
Kidero’s lawyer Tom Ojienda on the other hand asked the court to extend the period for negotiations saying that they were not given enough time to respond to the letter by Shebesh.
Ojienda also argued that the statement by Shebesh that she was ready to be charged was made in bad faith stating that it went contrary to the spirit of reconciliation.