The High Court has struck out an election petition by a Jubilee Party supporter challenging the election of Kilifi Governor Amason Kingi in the August 8 General Election with a cost of Sh750,000.
Malindi Resident Judge Weldon Korir on Tuesday ruled that Mr William Kahindi’s petition was filed outside the stipulated time and ordered him to pay Governor Kingi and his deputy a total of Sh600,000.
“It is most likely that the petition was filed after midnight even though the date of its receipt is indicated as September 6, 2017,” he said.
The governor, through lawyers Dennis Ben Mosota and Ms Atieno Aoko had said the omission of the date of declaration of results and the result itself as declared renders the case defective and incompetent.
“The petition does not show the number of votes cast in favour of each of the candidates who participated in the questioned election. The total votes cast in the election [are] also missing,” states part of the application.
OUT OF TIME
Justice Korir agreed with Governor Kingi that the petition was filed after 28 days from the date of declaration of the gubernatorial results of Kilifi County.
The judge further noted that Mr Kahindi had conceded to have replaced the first petition with the one on record contrary to section 76 of the Election Acts that provides procedure for presenting petitions in court.
“It is also important to note that the decision of the petitioner to take away the first petition was irregular and thus erroneous,” he said.
“Once a petition is filed it can only be withdrawn with the leave [of] court in accordance to election petition procedure rules,” he added.
However, he dismissed another application also by Governor Kingi seeking to strike out a petition filed by former Labour Cabinet Secretary Kazungu Kambi challenging the same election.
Mr Kingi had sought to have Mr Kambi’s petition struck out saying that he had not deposited the security on time and had not indicated the disputed results in his petition as declared by the IEBC.
The governor had said the omission of the date of declaration of results and the result itself as declared renders the case defective and incompetent.
Justice Korir noted that the petitioner had filed a formal application seeking to deposit the security for costs out of time and that election results requirement in a petition is not mandatory.
“It is the duty of the court in considering an application for extension of time to use its discretionary power to do justice in a circumstance of a given [case],” he said.
The judge directed Mr Kambi to deposit the security by November 2 in compliance with Section 78 of the Election Acts, 2011.
However, Governor Kingi said he would appeal against the ruling at the Court of Appeal.
The case will be heard on Thursday afternoon.