BY SAM ALFAN.
The High Court has struck out petition challenging the election of Nairobi County boss Mike Mbuvi Sonko.
Judge Msagha Mbogholi issued the ruling after the petitioners, Japheth Muroko and Zachaeus Okoth Oliech, made an application on Tuesday for leave to withdraw the election petition whose hearing was scheduled for January 8th to January 12, 2018.
“This court is left with no alternative but to order that the petition filed by the two petitioners against the respondents shall be and is hereby struck out for want of prosecution” ruled Msagha.
The judge also ordered the two petitioners to pay cost of 5 million to the governor and IEBC.
“The petitioner shall pay the respondents costs occasioned by the striking out of this petition capped at Kshs. 2.5 million to the 1st and 2nd respondents and Ksh. 2.5 million to the 3rd respondent, making a total of Ksh. 5 million” Judge ruled.
The petitioners cited security reasons, free will and own volition as grounds for the withdraw of the petition.
However, the judge in his ruling noted issues of security raised yesterday by petitioners legal team.
The judge further noted he has declined to struck out the petition earlier to avoid the petitioners being driven out of the seat of justice without a hearing but they no longer interested to prosecute the petition.
“As matters stand now, they are no longer interested in taking advantage of that right and the court cannot force them to proceed with the matter they have lost interest in” ruled the judge while dismissing the petition.
They petitioner through lawyer Antony Oluoch yesterday alleged his clients received threat via SMS.
“On 7th January, I received a phone call from a number unknown to me, and the caller threatened to murder my wife, family, advocates and myself should I appear in court with my witnesses and advocates to adduce evidence in support of the petition,” said Muroko in an affidavit.
“The person using the aforestated number threatened me and urged me to withdraw the Instant petition or else he would murder me together with my family and advocates.”
Mr Sonko lawyers Harrison Kinyanjui and Cecil Miller opposed the application for adjournment saying no evidence was adduced linking the threat to the ongoing petition before an election court.
They termed the application as delay tactics to delay the petition and petitioners were not serious with the petition.
Muroko reported the alleged threats at Kilimani Police Station and pursuant to the threats, the petitioner says, he believes that his right to access justice is threatened with infringement.
Judge Msagha Mbogholi is set give a way forward on the application to withdraw the petition.
On December 7, 2017 the High Court dismissed an application by the electoral commission to dismiss the petition against Governor Sonko.
The Independent Electoral and Boundaries Commission (IEBC) had asked the court to dismiss the petition against Governor Sonko saying that it was “incurable and defective for failing to join a critical party, deputy governor, to the proceedings.”
In the application, Mr. Sonko also insisted that the election petition against his August 8 election should be dismissed on grounds that it is defective for failure to include his deputy, Polycarp Igathe.
However, Judge Mbogholi Msagha struck out the application ruling that the deputy governor is not a mandatory party in an election petition.