Mombasa High Court has declined to throw out a petition challenging Governor Hassan Joho's victory.
Justice Lydia Achode said Joho failed to give proper reasons why the case should be struck out.
The Governor wanted the case halted for not meeting threshold and flouting election rules.
He argued that the petitioner, former Senator Hassan Omar, as the two positions are inseparable.
The ODM county chief said that should his election be nullified, the deputy would take up the governor's seat.
But Achode said the DG is automatically elected when the Governor is voted for so there is no need to enjoin him.
She declined to give Omar time to amend his petition, saying it should have been done within 28 days after the winners were declared.
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