It is double tragedy for losers in election petitions who have to be prepared to pay their opponents millions of shillings.
Losers in a number of the petitions filed immediately after last year’s polls have been slapped with costs ranging from Sh5 million to Sh10 million.
Even those who opted to withdraw the petitions were not spared by magistrates and judges handling the matters.
Under the Election Petition Rules 2017 published before the polls, Chief Justice David Maraga stated in section 30 (i) that the election court may, at the conclusion of a petition, make an order specifying the total or maximum amount of cost payable.
Under the rules, the election court also has powers not to award costs or impose the burden of payment on the party who may have caused unnecessary expense, whether that party is successful or not, in order to discourage such expense.
Maraga set the cap to save litigants from being slapped with high costs in election petitions.
The highest award in the country’s history was slapped on Kanu Secretary General Nick Salat in 2013 after parties in the case allegedly took advantage of Justice Aggrey Muchelule’s failure to cap the cost.
Salat was ordered to pay Sh67 million after former Bomet Senator Wilfred Lesan’s lawyers and those from the electoral body filed their claims for taxation.
In the bill filed by Lesan’s lawyers, they demanded things such as Sh36 million for the hours they spent in handling the petition. They also claimed Sh1,500 for every hour they spent in the journey to and from Kericho.
The hefty amount slapped on losers has seen a number of them perceive the move as a punishment for filing election petitions. Justice (retired) Muga Apondi told Sunday Standard cost awards should not be punitive to petitioners or respondents who are exercising their right to justice.
Costly justice
“Those aggrieved by the high costs slapped on them can move to Court of Appeal to have the figures moderated,” he said.
In the petition filed by Wiper Party candidates Wavinya Ndeti and Mr Peter Mathuki against Machakos Governor Alfred Mutua’s win, Justice Aggrey Muchelule said the cost should not be too high to make it impossible for parties to access electoral justice.
Muchelule ordered Wavinya to pay Sh10 million even after lawyers representing the Independent Electoral and Boundaries Commission (IEBC), Mutua and County Returning Officer made claims totaling Sh32 million.
“I order that the petitioners will jointly and severally pay Sh5 million to IEBC and the returning officer and Sh5 million to the third respondent (Mutua),” the judge said. The legal contest between Martha Karua and Kirinyaga Governor Anne Waiguru saw Judge Lucy Gitari award Sh10 million to the respondents. Karua, who is also a lawyer by profession, has vowed to challenge this at the Court of Appeal.
However, in the case filed against Kisumu Governor Anyang’ Nyong’o by his predecessor Jack Ranguma, Justice David Majanja capped the instruction fees for lawyers at Sh5 million.
Majanja also ordered that the cost be taxed and the total to be certified by the Deputy Registrar, saying this will be finally paid out of the security deposit on a pro-rata basis.
In the election petition against Busia Governor Sospeter Ojaamong, petitioner Peter Odima is to pay Sh8 million. “The costs will be subjected to taxation by the Deputy Registrar. The sum that was deposited in court will remain so pending the taxation of the cost,” Justice Kiarie Waweru ordered.
Ojaamong had five lawyers led by Rarieda MP Otiende Amollo. The lawyer who represented IEBC also acted for the returning officer.
‘Reasonable amount’
Petitioners who opted to withdraw the cases were also ordered to pay costs incurred by the respondents in instructing their lawyers and filing of documents in court.
When the East Africa Community Cabinet Secretary Peter Munya withdrew his petition challenging Mr Kiraitu Murungi’s election as Meru Governor, Justice Francis Gikonyo ordered costs only limited to the expense incurred during the re-sealing of ballot boxes by the court and IEBC.
IEBC and the returning officer are to file their inventories to allow the costs to be taxed and paid out of the security that was deposited by Munya when he filed the petition.
Gilphine Omwenga, who decided to withdraw the petition against Malava MP Moses Injendi, was ordered by the court to pay IEBC and its returning officer Sh2 million, a cost that is yet to be taxed and certified by the deputy registrar of the court.
According to the Advocates Remuneration Order of 2014, for an advocate to represent a party in an election petition, they should be awarded a reasonable amount of money that is not less than Sh500,000.
