The High court has declined to enjoin former Nairobi Governor Evans Kidero in an election petition challenging the election of Mike Mbuvi Sonko.
Justice Msagha Mbogholi dismissed the application with costs saying it was misconceived and lacked merit and thus it cannot be allowed without resultant in justice to Sonko.
“There is a studious silence why the applicant did not take the opportunity provided by the law to file a petition within the directives set by law, he lost that chance and in my considered view the present application is an ingenious attempt to advance the course whose doors have been shut,” ruled the Judge.
Justice Mbogholi stated that to allow the application will amount to amending the law and the discretion of the court cannot come to his aid.
The Judge also noted that Kidero had admitted that he intends to call additional evidence including witnesses to support the allegations to challenge the election in the question.
“This goes outside what the petitions sets out and allowing the application will prejudice the overriding objective which this court is enjoined to uphold,” he said.
According to the Judge, participation of an interested party should not amount to introduction of new course all together.
He stated that the issues to be determined by the court will remain the issues presented by the principal parties or framed by the court from the pleadings and submissions from the interested parties.
According to the Judge, one of the principals for admissions of an interested party is that such a party must demonstrate that he or she has a stake in the matter before the court but the stake cannot take the form of an altogether a new issue to be introduced before the court.
“Any interested party who signals that he or she intends to steer the court towards the consideration of those new issues cannot therefore be allowed. The reasonable conclusion is that the application must fail and is accordingly dismissed with costs to the respondents to be agreed and if not to be taxed by the taxing master,” he ruled.
Kidero through lawyer Tom Ojienda wanted to be enjoined in the suit claiming that his aim to help the court to arrive to a better finding on the Nairobi gubernatorial elections that they were undertaken in accordance with the law.
The application was opposed by Sonko’s lawyers Cecil Miller and Harrison Kinyanjui and also IEBC.
Through his lawyers Harrison Kinyanjui and Cecil Miller, Governor Sonko told High Court Judge Msagha Mbogholi that the application is an afterthought and a backdoor application to challenge his election.
“Nothing stopped Kidero from filing the application or election petition within the prescribed time,” lawyer Kinyanjui said.
Lawyer Cecil Miller also questioned the motive behind ex-governor Kidero’s move to file the application 52 days after Sonko declaration which is outside the stipulated timelines to file election petitions.
The main petition will heard on 28, 29 and 30 November.
