Making of a presidential election petition: Huge financial resources, teams involved

Unknown to the public, however, it is the behind-the-scenes preparations that count much in the making and defending of a presidential election petition.

From mobilising resources, hiring the required number of lawyers, getting election experts, collection of evidence, getting witnesses to swear affidavits to having the financial muscle are some of the ingredients required for a presidential petition.

According to lawyer Apollo Mboya, it is a huge task to mount a presidential election petition within a short time, and it requires not only huge financial resources but a lot of manpower to put the evidence together.

"Presidential election petition is not just any other case, it requires a lot of resources, from collection of evidence to having a team of experts and senior lawyers to lead the argument and backroom staff to do research and documentation," says Mr Mboya.

The former Law Society of Kenya (LSK) chief executive officer estimated that each team must have at least a 25-member legal team comprising five senior lawyers to take charge of arguing in court, 10 lawyers at the background to work on documentation and 10 legal researchers.

In addition, the teams must have ICT experts to audit the entire electoral process, mathematicians to do voter calculations and other backroom staff to do printing and documentation of all the paperwork.

"The most difficult part of each team will be the collection of evidence because you must have affidavits being sworn by your list of witnesses and people who saw and can confirm the irregularities witnessed," says Mboya.

Lawyer Henry Kurauka says the complexity, importance and public interest involved in a presidential election petition means each team needs more manpower and resources, including experts to help unravel difficult questions involving the electoral process.

"Having a presidential election petition is not about lawyers only if you want to win the case. The petitioners and defendants must enlist the services of other experts to explain the technical issues in the electoral process," says Mr Kurauka.

Lawyer Angela Mwadumbo agreed with them that since the presidential election petition involves questioning the process and results from all the 46,229 polling stations across the country, a lot of work must be done within the short period to put everything together.

Ms Mwadumbo says with the volumes of documents expected to be filed as happened in 2017 petition, the teams must be clear and precise in their strategy if they are to have a successful petition.

"Making the presidential petition requires a team of 30 to 40 lawyers and researchers. The short timeline means you need a big team and sufficient resources, given the magnitude of the case," she says.

Azimio la Umoja-One Kenya coalition, which is expected to file the petition challenging Ruto's victory has already assembled a team of top lawyers to spearhead its case.

The team has senior counsels Pheroze Nowrojee, James Orengo, Phillip Murgor, Prof Tom Ojienda, Otiende Amollo, Prof Ben Sihanya, Paul Mwangi, Tom Macharia and Jackson Awele.

Ruto has also not left anything to chance and has in his team senior counsels Kioko Kilukumi, Ahmednasir Abdullahi, Prof Kithure Kindiki, Dr Muthomi Thiankolu, Elisha Ongoya, Katwa Kigen, Hillary Sigei, Abraham Sing'oei and Omwanza Ombati.

The Independent Electoral and Boundaries Commission (IEBC) has tapped former Attorney General Githu Muigai to lead its team.

When it comes to financial implications of filing a presidential election petition, lawyers estimate that each team might require more than Sh100 million as costs for paying lawyers, the staff, getting witnesses, running errands and doing paperwork.

"The cost of filing a petition for governor is up to Sh10 million so I believe each of the law firms will take about Sh20 million for the presidential petition. You can then add the figures based on the number of lawyers and law firms involved," says Mboya.

The costs will be in addition to the mandatory fees paid to the Supreme Court when filing the presidential election petition.

According to the Supreme Court rules, any person filing a presidential petition must pay Sh1 million as security for the costs and Sh500,000 as cost for filing the petition. The respondents will also pay Sh20,000 for filing the response and Sh1,150 for each affidavit filed.

Other costs include lodging a notice of motion (Sh500), filing a certificate of urgency (Sh2,750), filing a notice to oppose the petition (Sh4,000), filing annexure (Sh50 per folio) and filing written submissions (Sh50 per folio).

Some legal analysts say for any team to win a presidential election petition, they must behave like soldiers in a military camp with well-coordinated activities and specific task for each member.

According to some sources within Ruto's and Azimio leader Raila Odinga's teams, there preparations for the Supreme Court petition did not start with the declaration of results on Monday last week but way before even the voting took place.

"All the opposing teams knew that there would be a presidential election petition, irrespective of which side would win. It started even before the August 9 General Election when the various camps set up teams to monitor the processes and document any irregularity," said a source.

Some of the candidates are said to have dispatched teams to several polling stations across the country to monitor and record electoral malpractices, which are likely to form part of the basis for challenging the declaration of presidential results.