Court suspends hearing of poll case against Joho

The Court of Appeal has suspended hearing of a case challenging the outcome of the Mombasa governor’s race until it rules on an appeal filed by the office holder, Mr Hassan Joho.

Justices Erastus Githinji, Milton Makhandia and Fatuma Sichale stayed the High Court proceedings until next month when they will give their verdict on the appeal.

Mr Joho filed the appeal after High Court judge Fred Ochieng’ declined to strike out the petition filed by Mr Suleiman Shahbal. The governor had claimed the case was filed late.

Six-month period

Mr Shahbal had asked the Court of Appeal to lift the stay, saying, the six-month period within which poll petitions should be determined was running out. But Mr Joho, through lawyer Mohammed Balala, said it would be unfair to take him through a High Court process while his appeal was still pending.

Judge Ochieng’ said the petitioner relied on Section 76 of the Elections Act, whose legality was not challenged at the time of filing the petition.

While arguing the appeal, however, Mr Balala said that Mr Justice Ochieng’ was right to establish that there were inconsistencies in Section 76 of the Elections Act and Article 87 (2) of the Constitution, which deal with the timelines of filing petitions.

Section 76 states: “Petitions shall be filed within 28 days after the date of publication of the results of the election in the gazette notice”.

On the other hand, Article 87 (2) states: “Petitions concerning an election, other than a presidential election, shall be filed within 28 days after the declaration of the election results by the electoral commission”.

According to Mr Balala, these two statutes were different and the petitioner therefore needed to show the court that the words declare and publish meant one and the same thing.