BY SAM ALFAN.
The Court of Appeal has upheld the decision by the High Court that dismissed a petition that challenged the election of Nairobi Governor Mike Sonko seeking to overturn his victory as dully elected city Governor.
“”We substitute the order striking out Election petition No. 23 of 2017 with an order dismissing it for lack of evidence. The consolidated appeals are dismissed in the entirety with costs to respondents, which we cap at 2 million” ruled the judge’s.
Appellate judge’s Justices Roselyn Nambuye, Gatembu Kairu and Kathurima M’Inoti agreed with their High Court Judge Mbogholi Msagha who struck out the petition under what he termed lack of interest by petitioners Japhet Muroko and Zachaeus Okoth to prosecute their case.
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 appellate judges ruled that an election court is not powerless and a judge has the discretion to strike out a case where circumstances demand.
However, noted that the only mistake justice Msagha did was to strike out the case when he should have dismissed the petition.
“Accordingly, we hereby substitute an order striking out the petition with an order dismissing the petition for lack of evidence,” the judges said.
The court also agreed that costs follow events and those who file frivolous cases should be ready to pay costs.
The appellate court award the petitioners 2 million costs
The Governor said that the election petition at the High Court was filed with an intention to blackmail and extort from him.
He claims that the two people challenging his win wasted their chance at the high court and are now abusing the court process by filing an appeal.
Through his lawyers Harrison Kinyanjui and Cecil Miller, Sonko has defended Justice Msagha Mbogholi decision saying that he was right in striking out the petition because the two petitioners were not interested in prosecuting the case.
“You cannot ignore the fact that thousands of his (supporters) were also anxious and wanted the case brought to a finality. Withdrawing the case would have caused more anxiety,” submitted Kinyanjui
Mungai Nani for the Independent Electoral and Boundaries Commission said that the judge declined the application for adjournment because it was apparent the petitioners were not ready to prosecute the case.
Nani urged the court of appeal judges to dismiss the appeal.
Japheth Muroko and Zacheus Okoth had challenged Sonko’s election as Nairobi Governor but the case was dismissed by Justice Msagha saying that the two were no longer interested in prosecuting the case.