The court of appeal has this afternoon struck out an appeal filed by Dolphine Nyangara challenging city lawyer Michelle Omwoyo’s win at the high court which affirmed her as the Jubilee nominated MCA.
Justices Hannah Okwengu, Joel Ngugi and H.A. Omondi further ordered her to pay costs to Omwoyo and IEBC for losing the case.
“The appellant shall pay the costs of the appeal to the 1st and 2nd respondents,” the court ruled.
Nyangara had filed an appeal the appeal court even though the law stipulates that all MCA related disputes should end at the high court.
According to the law, all MCA election petitions end at the high court and there is no room for second appeal.
Omwoyo had won at the magistrate’s court leading Nyangara to file an appeal at the high court which dismissed her case which made her file the appeal before the court of appeal.
Nyangara refused to withdraw the matter even after being advised to do so by court through her lawyer and other litigants but she asked the court to make a determination.
In submissions Omwoyo’s lawyer Danstan Omari the court to slap Nyangara with punitive costs for refusing to withdraw her illegal appeal.
Omari said the punitive costs should be a lesson and a stoppage to wasting of judicial time by other litigators.
In their ruling, appeal judges agreed with Omari and slapped her with costs to be paid to Omwoyo and IEBC.
The court said there was no express statutory provision, to entertain a second appeal, from the High Court, emanating from an election petition concerning the validity of the election of a Member of a County Assembly.
“Since this result is determinative of the whole appeal, and since we have concluded that we have no jurisdiction, we find it unnecessary to consider the other two issues raised in the Notice of Motion dated 9th June, 2023,” court ruled.
The court said that the right to access justice does not imply a right for a party to file endless appeals in all situations, instead, our Constitution explicitly anticipates situations where the right or scope of appeals can be restricted in order to promote timely and proportionate settlement of cases.
“It does not automatically create a right of appeal by the parties in all circumstances. A right of appeal precedes jurisdiction; and the general jurisdiction of the Court of Appeal to hear and determine appeals from the High Court,” the court ruled.
“In the result, we hereby strike out the Notice Appeal dated 5th June, 2023 for want of jurisdiction,” the court ruled.
