IEBC caps save taxpayers from punitive legal fees

A cap set on legal fees payable to lawyers representing the electoral commission in petitions will save the taxpayer billions of shillings.

The recently introduced cap will see external lawyers who handled the 375 petitions on behalf of the Independent Electoral and Boundaries Commission (IEBC) as a respondent paid as per set guidelines.

In a document seen by Sunday Standard, lawyers who handled petitions touching on gubernatorial and woman representative elections are to earn from the IEBC a maximum of Sh3 million, plus 16 per cent tax (all inclusive).

Payable costs

The highest amount for lawyers representing the commission in petitions touching on MPs was capped at Sh2 million, while those for Members of County Assembly (MCAs) was put at Sh700,000.

In the appeals lodged, the highest amount to be paid in the appeals emanating from the High Court is Sh2.5 million.

Unlike in previous years where the commission spent billions of shillings in legal fees, this time the taxpayers will pay less than the Sh10.5 billion spent in the 2013 cases after Chief Justice David Maraga came up with rules that gave judges powers to put a ceiling on awards.

IEBC is likely to use the money collected from the awards given by the courts to settle cases lost and lawyers’ legal fees.

Under the Election Petition Rules 2017 published by the CJ before the polls, Maraga stated that the election court may, at the conclusion of a petition, make an order specifying the total or maximum amount of cost payable.

The rules provide that the election court also has powers not to award costs or impose the burden of payment on the party that may have caused unnecessary expense, whether that party is successful or not, in order to discourage such expense.

Maraga, who came into office in 2016, 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 capthe cost.

Salat was ordered to pay Sh70 million after former Bomet Senator Wilfred Lesan’s lawyers and those from the electoral commission 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.

Paper work

The hefty amount slapped on losers has seen a number of them perceive the move as a punishment for filing election petitions. 

IEBC chairman Wafula Chebukati told the Justice and Legal Affairs Parliamentary Committee before the August polls that the commission was concerned about the huge sums of legal fees charged by lawyers and pointed out that a cap was necessary.

Apart from lawyers representing the commission, those hired by governors, senators, MPs, woman representatives and MCAs will be smiling to the bank.

Lawyer Ombati Omwansa, who handled seven cases, told Sunday Standard that it has been taxing since all other matters at his law firm had to be put pending to enable him concentrate on election petitions. “I got judges who accommodated me on dates that did not affect the petitions,” said Omwansa, who worked with a team of five lawyers to win four of the cases.

In the petition that saw the High Court nullify the Wajir gubernatorial election, Justice Alfred Mabeya ordered that Omwansa’s client be paid cost capped at Sh2 million.

Kitutu Chache MP Jimmy Angwenyi’s award for cost was capped by Justice Hellen Omondi at Sh1 million.

In the election petition against Turkana Governor Joseph Nanok, Justice Stephen Riechi ordered Petroleum CS John Munyes to pay the governor Sh4.5 million.

Nanok was represented by Justice (Rtd) Muga Apondi and Philip Nyachoti.

Apondi said election petitions are taxing since lots of verifications and paper work is required before one appears in court to defend a client.