Bernice Mbugua @BerniceMuhindi
The Court of Appeal has upheld the High Court decision that dismissed an election petition against Nairobi Governor Mike Sonko.
Justices Kathurima M’Inoti, Roselyn Nambuye and Gatembu Kairu ruled that discretion belongs to the trial court and not the appellate court and thus it cannot interfere with the discretion of the trial court.
According to them, Justice Msagha Mbogholi acted within the Constitution in striking out the petition which had been filed by two voters Japheth Muroko and Noah Akala.
“The two appellants were indeed aware that the Judge had told them he will not adjourn the matter. The court cannot be held at ransom by the litigant considering the timeliness of the election petition.
The learned Judge exercised his jurisdiction in striking out the petition,” ruled the Judges. They, however, noted that the only mistake the judge did was to strike out the case when he should have dismissed the petition and thus substituted the order striking out the petition with an order dismissing the petition for lack of evidence.
In the appeal, the two had claimed that Justice Mbogholi erred in law and in facts in striking out the petition. “The learned Judge acted unreasonably and irrationally in striking out the petition for reasons stated in his decision,” they said.