Three civil rights groups have been saved from paying millions of shillings to President Uhuru Kenyatta and his deputy William Ruto as legal costs.
The rights groups had challenged the duo’s eligibility to contest the 2013 elections.
Court of Appeal Judges Daniel Musinga, Gatembu Kairu and Agnes Murgor ruled that it was wrong for five High Court judges to condemn the groups to pay Uhuru, Ruto and the electoral commission more than Sh180 million when their suit was in public interest.
The judges ruled that the Kenya Human Rights Commission, the International Commission of Jurists-Kenya Chapter and International Centre for Policy and Conflict had no personal vendetta against the President and Deputy President, as they only sought to enforce provisions on leadership and integrity.
“Public interest litigation are for public benefit and not entities that instituted the proceedings. Condemning them to pay huge costs can become a deterrent and more likely will make people shy away from filing suits to defend the Constitution for fear of being punished with costs,” they ruled.
The groups had filed the petitions in November 2012, seeking a declaration that the nomination of Uhuru and Ruto to contest the presidency despite the crimes against humanity charges they were facing at the International Criminal Court (ICC) would be a violation of the Constitution.
They wanted the Independent Electoral and Boundaries Commission (IEBC) barred from accepting their nomination on grounds that the two failed the leadership and integrity test and were not fit to hold public office.
However, High Court Judges Mbogholi Msagha, Luka Kimaru, Hellen Omondi, Pauline Nyamweya and George Kimondo dismissed the consolidated petitions on grounds that they had no jurisdiction since the matter concerned presidential election, which was a preserve of the Supreme Court.
The judges punished the civil rights groups for filing the multiple cases against the President, his deputy and the IEBC and ordered that they pay the costs, which was to estimated to be more than Sh180 million.
The appellate judges, however, stated that in suits involving genuine public interest, the courts should be slow to award costs.
“They had a genuine concern on the threat to the office of the president and deputy president with both Uhuru and Ruto facing criminal proceedings at the ICC. The trial court, having correctly noted that it was public interest litigation, should not have awarded the costs,” ruled the judges.
The judges said the Constitution gives every person the right to institute court proceedings where a claim of contravention of a right or fundamental freedom has been established.
They said public interest litigation plays a transformative role, as it allows various issues affecting society to be fairly adjudicated, and that punishing those who file the cases would lead to serious violation of the Constitution.
They also dismissed an application by Uhuru’s lawyers that the case be put on hold until he finishes his term as president. Lawyer Evans Monari for the President had argued that he was insulated from criminal proceedings as the head of state, and that determination of whether he should be awarded the costs should wait until after 2022.
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But the judges ruled that the incident leading up to the dispute happened way before Uhuru became president.
“The case relates to incidents that happened after the 2007 General Election and before Uhuru assumed the office of president,” ruled the judges.