Joho fails in bid to halt poll petition

Mombasa Governor Hassan Ali Joho suffered a blow Thursday after a court directed that an election petition filed against him should proceed to full hearing.

The High Court declined to strike out the case, saying that it would amount to victimising the petitioner for the mistakes that were not of his own making.

And the petition filed against Lunga Lunga MP Khatib Mwashetani will also proceed to full hearing after Mr Justice Vincent Odunga dismissed an application to have it struck out.

Mr Justice Fredrick Ochieng’, who is hearing the petition against Mr Joho, noted that although it was filed 34 days after the declaration of the results, he would allow it to proceed.

He said the petitioner, Mr Suleiman Shahbal, relied on Section 76 of the Elections Act, whose legality had not been challenged at the time of filing the case.

Section 76 of the Elections Act states that “a petition shall be filed within 28 days after the date of publication of the results of the election in the gazette notice”.

“It is, however, not clear when the electoral body ought to gazette the results and by imposing the requirement for gazettement without stating the timelines for which a gazette notice is to be published amounts to an impractical action,” he said.

He, however, ordered the Attorney-General to amend the section to read “a petition shall be filed within 28 days after the date of declaration” so that it is consistent with Article 87 (2) of the Constitution that was strict on the wordings and timelines for which a petition ought to be filed.

Article 87 (2) states that “petitions concerning an election, other than a presidential election, shall be filed within 28 days after the declaration of the election results by the Independent Electoral and Boundaries Commission (IEBC)”.

Filed out of time

He suggested that Article 87 (2) should, alternatively, be amended to read “petitions concerning an election, other than a presidential election, shall be filed within 28 days after the date of gazettement by the IEBC”.

The judge was delivering a ruling on an application filed by the governor to strike out the petition, saying it was filed out of time, contrary to the regulations.

Mr Joho argued that Mr Shahbal filed his petition after the publication of results in the gazette notice while it ought to have been filed soon after the announcement by the county returning officer.

But the judge noted that the petitioner did not commit any mistake by relying on Section 76, and it would, therefore, be unfair to punish him for mistakes of Parliament.

The case will be heard on May 30.