The Nairobi governor is fighting to stop the resuscitation of a petition challenging his election.
Mike Sonko's lawyers defended High Court judge Msagha Mbogholi's decision to strike out the petition by Japheth Muroko and Zacheaus Okoth.
The governor told the Court of Appeal yesterday that the petitioners were given an opportunity to prosecute the case but failed to do so.
Mr Sonko said allowing the petition to start again would be unfair as it would subject him to a double judicial process. He accused the petitioners of trying to blackmail him.
“The two petitioners are abusing the court process by filing the appeal when they wasted their time at the High Court when they filed a notice at the last minute to withdraw the case. The judge was right in striking out the case after they showed disinterest in continuing to prosecute it,” said lawyer Harrison Kinyanjui.
He said the governor’s supporters wanted the case to end and that restarting it would subject them to uncertainty.
Justice Mbogholi in January struck out the petition after the petitioners filed a notice of withdrawal.
The judge said he declined to allow the application for withdrawal by the petitioners to save Sonko and the Independent Electoral and Boundaries Commission from dealing with another person taking over the case.
Under election petition rules, a case does not end when the petitioners withdraw. The law allows substitution, meaning another person can take over a case and continue with it.
Muroko and Okoth appealed against the decision to deny them the chance to formally withdraw the case. They claimed the judge treated them unfairly even after they reported threats to their lives.
Through lawyers John Khaminwa and Jackson Awele, the petitioners told appellate judges Roselyn Nambuye, Gatembu Kairu, and Kathurima M’Inoti to overturn the decision and allow Noah Akala, who has applied to take over the petition, to continue with the case.
“Application for withdrawal can be made any time before a petition is determined. Election petitions are constitutional processes which must reach a conclusion. The judge made a mistake in striking it out. He should have allowed the petitioners to be substituted,” said Awele.
Dr Khaminwa urged the Appeal Court not to ignore the fact there were threats and intimidation before the petition was heard. He noted that a report from the police was filed in court but the judge ignored it.
But the governor’s lawyers said the petitioners had not tabled any evidence to back their claims of sabotage and plans to derail the case through intimidation.
They also opposed an application by Dr Akala to join the case, stating he was a witness in the original petition and, therefore, had no right to take over the case.
“He was a witness in the election petition and as such, he was not a petitioner envisaged to appeal against any decision of the court, to which extent he lacks the basis to challenge any decision of the election court,” said Kinyanjui.