Nairobi Governor Mike Sonko can now breathe easy after the Court of Appeal dismissed a case seeking to revive an election petition against him.
Justices Roselyn Nambuye, Gatembu Kairu and Kathurima M’Inoti agreed with High Court Judge Mbogholi Msagha that he rightly dismissed the case because the petitioners, Japhet Muroko and Zachaeus Okoth, were no longer interested in pursuing the matter.
The judges ruled that an election court is not powerless and a judge has the discretion to strike out a case where circumstances demand.
They, 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 petitioners were ordered to pay Sh5 million in costs by the High Court.
Through his lawyers Harrison Kinyanjui and Cecil Miller, Mr Sonko argued that justice Msagha was right in striking out the petition because the two petitioners were not interested in prosecuting the case.
He said the case was adjourned twice to allow Mr Muroko and Mr Okoth to prosecute the case but they were not ready and sought more time.
“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,” Mr Kinyanjui said.
Immediately after the decision, lawyer John Khaminwa for the two petitioners, said they will be moving to the Supreme Court because the judges had not addressed the issue of intimidation and threats made towards them.