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Mixed fates as MPs win poll petitions on technicalities as others lose
- Details
- Published on Tuesday, 22 July 2008 18:24
Joel Omagwa Onyancha v Simon Nyaundi Ogari & another [2008] eKLR
Court of Appeal at Nairobi
June 6 & June 11, 2008
It has been a month of mixed fortunes for MPs facing election petitions. While the cases against Magarini MP Amason Kingi Jeffah and his Kitui West counterpart, Charles Mutisia Namai, have been dismissed, two other MPs have failed in their bids to block the hearing of the petitions filed against them. Naivasha MP John M. Mututho and his Bamachoge counterpart, Mr Joel Onyancha have lost their separate applications in which they had asked the Court of Appeal to temporarily halt the hearing of their petitions pending the hearing of the appeals they filed against certain decisions made by lower courts.
The case against Mr Mutotho was filed in the High Court in Nakuru in February by former MP Jayne Kihara. Mr Mututho had asked the Court of Appeal to temporarily order Lady Justice Martha Koome to halt the hearing of the case while he appealed against a decision made by the judge.
Results of election
Mr Mututho had intended to strike out the petition on the ground that Mrs Kihara had failed to comply with a provision of law requiring that the results of the election should be expressly stated in the petition.
Justice Koome had found no merit in his application and dismissed it before giving fresh dates for the continued hearing. Mr Mutotho then lodged a notice of appeal in the Court of Appeal and an application asking that the hearing of the petition should stop while the appeal was being determined.
In the other case, Mr Onyancha has been battling a petition filed in the High Court at Kisii by two petitioners, Mr Simon Ogari and Zephania Nyang’wara.
In February, Mr Onyancha had filed an application asking Justice Daniel K. Musinga to dismiss the petition because it had not been personally served on him as required by law. The judge had considered the application and in a ruling delivered on March 13, dismissed it after coming to the conclusion that the petition had been properly served.
Mr Onyancha intended to appeal against that decision and asked the Court of Appeal to put the petition on pending the hearing and determination of the appeal.
Ordinarily, in an application for halting proceedings pending appeal, a long line of previously decided cases have established that the person making the application should satisfy the court on two matters.
First, that the intended appeal was an arguable one and not frivolous, and second, that if the proceedings in the High Court were not halted, he would be so prejudiced that even if his appeal was to succeed, the victory would be pointless.
The Court of Appeal, which was comprised of Appeal Judges R.S.C Omolo, P.K. Tunoi & J.W. Onyango Otieno, did not find any merit in Mr Muthotho’s application.
Even if it was to assume that he had an arguable appeal, the court said, there were no special factors showing that the success of the appeal would be rendered pointless if the hearing of the petition was to continue.
A differently constituted bench of the court later expressed similar sentiments in dismissing Mr Onyancha’s application. Appeal Judges P.K. Tunoi, E.O. O’Kubasu and E.M. Githinji observed that even if the appeal was to succeed while the petition proceeded, it would only render the proceedings in the High Court unnecessary and an appropriate order for the payment of litigation costs would be made to appease the aggrieved party.
Moreover, the court felt that to allow Mr Onyancha’s application would defeat the principle that election petitions should be decided expeditiously.
