Court strikes out petition challenging Vihiga MP’s win

Case dismissed after petitioner skips all sessions including pre-trial hearing.

Vihiga MP Ernest Kivai (centre) and his supporters celebrate outside the Kisumu Law Courts on November 2, 2017after a petition filed by his opponent, Emily Nyabuto, contesting his election was dismissed. Justice David Majanja dismissed the case on the basis of non-attendance of hearings by the petitioner. PHOTO | ONDARI OGEGA | NATION MEDIA GROUP 

IN SUMMARY

  • Justice David Majanja dismissed it on the basis of lack of seriousness by Mrs Nyabuto.
  • Mrs Nyabuto had filed the petition on September 6 and a date was fixed for hearing but neither she nor her lawyer was present.

An election petition filed against the election of Vihiga MP Ernest Kivai has been dismissed.

The petition filed by Mrs Emily Nyabuto was thrown out by High Court Judge Justice David Majanja for non-attendance.

The petitioner had skipped all the sessions including pre-trial hearing, making the respondents in the case, the Independent Electoral and Boundaries Commission (IEBC) and Mr Kivai to term it as lack of seriousness from her side.

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Justice David Majanja dismissed it on the basis of lack of seriousness by Mrs Nyabuto.

Mrs Nyabuto had filed the petition on September 6 and a date was fixed for hearing but neither she nor her lawyer was present.

WITHDRAWAL

According to Mr Kivai’s lawyer, Mr Pascal Odhiambo, the petitioner later filed a notice of withdrawal but again was not present to defend it.

“My lord this non-attendance shows lack of seriousness from the petitioner and the case should be dismissed,” said Mr Odhiambo.

The same prayers were also sought by IEBC lawyer John Oscar Juma.

However, Justice Majanja stated that Mrs Nyabuto had claimed that she was not aware of the withdrawal application and had not instructed her advocate to do so.

LACK OF SERIOUSNESS

“The non-attendance displayed by the petitioner shows lack of seriousness. I therefore dismiss the case with costs to the respondents,” said Justice Majanja.

Mr Kivai lauded the court’s move saying that from the onset he knew the case was frivolous.

“The petitioner came last in the elections. When I was declared winner, those who performed better than Mrs Nyabuto conceded defeat and congratulated me. I am happy the court realised that the case was frivolous,” said Mr Kivai.

Meanwhile, in the same court, Justice Majanja said he will be giving a ruling on Tuesday on an application filed by former Kisumu governor Jack Ranguma seeking access to Kiems kits SD cards from all the 1,027 polling stations in Kisumu.

Mr Ranguma is contesting the election of Prof Anyang’ Nyong’o as the Kisumu governor in the August 8 elections.

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