Twelve Jubilee ward representatives in Nyeri County have survived a bid to quash their nomination after High Court threw out an appeal by seven residents.
Justice Jairus Ngaah dismissed the appeal filed by six residents on technical grounds of the petitioners’ failure to comply with Election (Parliamentary and County) Petition Rules 2017.
Justice Ngaah found that the residents’ lawyer Samuel Ndung’u failed to file the record of appeal within 21 days of filing the memorandum of appeal, as required by the Elections Act.
“The delay in filing the record shows that the appellants are not keen on prosecuting the appeal. The delay, in any event is inexcusable,” said the judge as he agreed with the MCA’s lawyer Richard Kamotho.
Mr Kamotho, in his application, told the court that the appeal was meant to frustrate the MCAs from enjoying fruits of the lower court’s judgment on January 31, this year.
The judge blamed the appellants, saying they even failed to seek more time to file the required documents.
“There is no application for extension of time to file the record of appeal for this court to consider. And even if there was such an application, I doubt I would have exercised my discretion in the appellants’ favour if the reason given for the delay in filing the record of appeal is anything to go by,” said the judge.
He was commenting on Mr Ndung’u’s explanation that the delay was due to financial constraints and difficulties in compiling the record of appeal.
“I am also not prepared to accept that funding of the appeal should have been an issue because the fee payable upon the filing of the memorandum of appeal is Sh15,000 which, in my humble view, is [a] modest sum,” Justice Ngaah said.
The judge said the set timelines to deal with election petitions are mandatory and the court has no discretion to extend time within which the petition should be determined.
“I am minded that in his submissions, counsel for the appellants urged that the appellants either did not pay him his fees or were unable to raise it and therefore he could not take any further step in processing and prosecuting their appeal,” he added.
The judge said that when the lawyer accepted brief to appeal against the trial court’s decision and proceeded to lodge the memorandum of appeal, he was bound to go with it to the end.
Mr Ngaah further noted that among the documents the residents who appealed the case were supposed to file were a memorandum of appeal, the pleadings of the petition as well as the typed and certified copies of the proceedings.
They were also expected to file all the affidavits, evidence and documents entered in evidence before the magistrate and a signed and certified copy of the judgment appealed from and a certified copy of the decree.
“Of all the above documents, the only one that the appellants filed is the memorandum of appeal,” said judge Ngaah.