Mutula Kilonzo Junior, Governor of Makueni, has suffered a major setback after losing his bid to have a lawsuit challenging his election over alleged election irregularities dismissed.
Mutula and the electoral commission requested that the High Court dismissed a petition filed by Patrick Musimba challenging his victory in the August elections on the grounds that he failed to name his Deputy Governor Lucy Mumbua Mulili as the fourth respondent in the legal dispute.
The county boss argued, through lawyer Kethi Kilonzo, that Musumba’s failure to name his deputy Mumbua as a respondent in the proceedings at the time of filing the petition was a major flaw in the main petition, which seeks the election’s nullification.
He contended that if she is not enjoined, the outcome of the petition will have a direct impact on Mumbua.
“An order of the court to strike out the entire petition for being fatally defective for failing to join my Deputy Governor as proposed fourth respondent as party to the suit within 28 days of the declaration of results and failing to deposit security of Ksh 500,000 persuant to section 78 of the Election Act,” Mutula stated.
However, Justice John Onyiengo denied the request to dismiss the petition, stating that the absence of the Deputy Governor was not fatal to the petition.
“The Deputy Governor’s non-joinder in this case is not fatal to the petition, and thus, the respondents’ notice of motion and preliminary objection of September 20,2022 are without merit and thus dismissed,” Justice Onyiengo said.
The Judge agreed with Musimba’s argument that it is not required for a Petitioner to name a Deputy Governor as a respondent under the Elections (Parliamentary and County Elections) Petition Rules 2017.
Furthermore, the judge stated that a Deputy Governor’s participation or non-participation in such a suit is immaterial or of no consequence because his or her survival is solely dependent on the fate of the Governor.
On whether failing to enjoin a Deputy Governor as a party is fatal to a petition, the court stated that a Deputy Governor cannot use Article 182(2) of the constitution to claim and gain special autonomy from that enjoyed by the governor.
He went on to say that the declaration of a Deputy Governor’s election is conditional on the success of the Governor’s election.
The judge ruled that a Deputy Governor, like the Governor, cannot claim to have assumed substantive office if an election petition challenging his election is still pending.
“I believe he would be squadding in office during that time while the court validated his election. A Deputy Governor cannot also claim to hold a separate office from his boss, the Governor, in order to attract a petition against him independently.” According to Justice Onyiengo.
Musimba had vehemently opposed Mutula’s request, describing it as “scandalous, vexatious, frivolous, misconceived, baseless, made in bad faith, anchored in misinterpretation of the election laws, and maliciously drawn to mislead the court to dismiss the main petition challenging technicalities without going to the substance of the suit.”
Lawyer Kimathi stated in his submission that the petition challenging Mutula’s victory raises serious issues that should be heard and decided on merit.
Musumba, who ran for governor of Makueni in the recently concluded August 9 General Election, has challenged Mutula’s declaration as governor by the Independent Electoral and Boundaries Commission (IEBC) on August 13 on allegations of electoral malpractices during the polls.
