The court said that Justice Mbogholi Msagha should have dismissed the case instead of striking it out.
The Court of Appeal Monday dismissed plans to revive a petition challenging the election of Nairobi Governor Mike Sonko.
According to justices Roselyn Nambuye, Gatembu Kairu and Kathurima M’Inoti, the High Court acted judiciously when it dismissed the petition by Japhet Muroko and Zacheus Okoth. The court said that Justice Mbogholi Msagha should have dismissed the case instead of striking it out.
“Accordingly, we hereby substitute an order striking out the petition with an order dismissing the petition for lack of evidence,” the judges said.
The judges said that an election petition is a matter of great public importance and any party moving to court to challenge an election should proceed with the case as expected.
The two petitioners, the judges noted, acted as if they were not interested in prosecuting the case. They noted that Mr Muroko and Mr Okoth were given chances to call witnesses but they sought to adjourn the case.
Through his lawyers Harrison Kinyanjui and Cecil Miller, Mr Sonko argued that Justice Msagha was right in striking out the petition because the petitioners were not interested in prosecuting it.
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