The Council of Governors has moved to court seeking orders to stop magistrates from issuing orders barring them from accessing office whenever they are charged with economic criminal offenses.
Through their lawyer, Peter Wanyama, CoG has listed the Director of Public Prosecutions, the Ethics and Anti-Corruption Commission, National Police and Attorney-General as interested parties.
In the application filed under a certificate of urgency, CoG wants a temporary injunction issued to the listed interested parties from making an application before any magistrate in Kenya to seek orders that constructively remove governors from office whenever they are charged with a criminal offense until Parliament enacts legislation.
The lawyer wants the application to be placed before the Chief Justice to appoint or constitute a bench to hear the application, saying it raises serious questions of law.
"This Honorable Court certifies that the petition filed herein raises substantial questions of law pursuant to the provisions of Article 165 (4) of the Constitution and should be determined by an uneven number of judges appointed by the Chief Justice," reads part of the application.
The lawyer argues that the concept of stepping aside has presented major difficulties in the running of county government operations.
"It has created paralysis and confusion in the performance of county government functions thereby undermining service delivery and the objectives of devolution," said CoG.
The council claims when EACC and DPP apply to the magistrate that a governor charged with a criminal offense should be barred from accessing offices because the 'office of the governor' is a "crime scene" it is not clear what that means.
The governor's lobby says there is need for the High Court to interpret the meaning of ‘office’ in the context of the election of the governor and the removal process.
Several governors have been arraigned in court to answer charges on corruption and economic crimes.
During bail hearings, the DPP has been raising strong objections that the accused being a governor should only be released on bail on condition that they do not access their offices pending hearing and determination of their cases.
Some of the governors ordered not to access office during the pendency of their criminal trials are Samburu Governor Moses Lenolkulal, impeached Governor Ferdinand Waititu, and Garissa Governor Ali Korane.