Double blow to petitioners who could fork out Sh500 million

NAIROBI, KENYA: Election petition losers could collectively fork out at least Sh500 million in punitive costs awarded to the winners as the courts conclude the cases tomorrow.

A review by The Standard of about a third of the 388 petitions already decided indicated the petitioners who lost their bids to unseat various leaders were ordered to pay Sh347 million collectively.

This is a double blow for the petitioners, who went to court hoping to overturn their rivals' election victories and have another chance to contest the seats. Instead, they now have to foot hefty legal bills months after the elections last August. 

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However, it has emerged that this year, the courts were guided by caps on costs to be awarded in the petitions.

Compared to cases filed after the 2013 General Election, the number of cases filed after last year's polls increased from 188 to a record 388.

Even with the checks, the awards against unsuccessful petitioners were high, with those petitioning against governors being slapped with the heaviest costs.

Out of the 21 petitions against governors decided, the courts collectively charged losers Sh126.3 million.

The highest award for cases involving governors was Sh12 million against petitioners who unsuccessfully challenged the election of Laikipia Governor Ndiritu Muriithi and his Busia counterpart Sospeter Ojaamong.

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Petitioner Sammy Ndung’u was ordered to pay Sh12 million, out of which Sh4 million would go to the Independent Electoral and Boundaries Commission (IEBC) and the county returning officer, and Sh4 million each to Mr Muriithi and his deputy John Mwaniki.

Peter Odima Khasamule, who was the lead campaigner for former Funyula MP Paul Otuoma, who finished second in the Busia governorship contest, was ordered to pay Sh12 million to be shared among the three respondents.

Wavinya Ndeti was also ordered to pay Sh10 million after her petition challenging the election of Machakos Governor Alfred Mutua was struck out.

For the Senate and Woman Rep seats, the awards in 12 cases totalled Sh39.1 million. The highest cost is Sh8 million, which was awarded by the High Court in Kisii to Sam Ongeri and IEBC. In the woman rep petition, Janet Ongera’s case had the highest award at Sh5 million.

The 41 cases touching on MPs attracted a total of Sh166.4 million in costs. Nairobi Milimani Court granted the highest award - Sh10 million - to Starehe MP Charles Njagua and the electoral commission.

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Judges who heard MPs' cases mostly awarded Sh2 million as costs.

However, the costs pronounced in court might not necessarily be what those who won will walk home with.

Definite figure

There are judges who expressly prescribed a definite figure and there are those who capped the cost to a figure.

In capping, the judge simply meant that when the parties go to the taxing master, who is the deputy registrar of the court, he or she will either get the whole amount or less.

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The cost of a case is determined by the number of filings; that is, applications filed during the case, and the amount of time spent on litigation.

A simple and straightforward petition attracts a lower cost while one with a lot of manoeuvring attracts more.

The capping concept came about after it was discovered that winning litigants were making election petitions a money-minting venture while losers were left shouldering heavy costs.

The Judiciary Committee on Elections (JCE) last year decided that judges and magistrates should set caps to check the trend.

The highest award in the country’s history was slapped on Kanu Secretary General Nick Salat in 2013.

At the time, Justice Aggrey Muchelule ordered Mr Salat to pay Sh67 million after former Bomet Senator Wilfred Lesan’s lawyers and those from IEBC filed their claims for taxation.

Lesan’s lawyers charged Sh36 million for hours spent handling the petition. They also claimed Sh1,500 for every hour they spent on the journey to and from Kericho.

Data gathered by The Standard from the Judiciary indicates that 98 cases were filed over parliamentary seats last year.

In addition, 35 governors faced a contest in court while 15 senators had a second duel.

Highest number

A total of 12 cases were filed to challenge elected women reps and another 98 touched on the legality of those who were elected as Members of Parliament.

County assembly positions attracted the highest number of cases, with 139 filed in the magistrate's court.

Those aggrieved by political party nominations for both Parliament and county assemblies filed 89 cases.

Those who challenged the August 8 poll results parted with between Sh15,000 and Sh1 million in court filing fees.

For the presidential election petition, the Judiciary fetched Sh1 million as security, Sh500,000, which was non-refundable, and Sh20,000 for every response.

A further Sh4,000 was charged for filing a notice of intention to oppose the petition.

At the same time, those contesting senator, governor, woman representative and parliamentary elections paid Sh30,000 in the High Court while those who challenged MCA election results parted with Sh15,000 as filing fees.

Filing a memorandum of appeal from the magistrate's court cost Sh15,000.

The amount for the High Court and the magistrates was to be accompanied by a Sh100,000 security fee refundable upon completion of the case.

In all the cases filed, Kisii and Kilifi counties had the highest number of MCA election results being contested in court. They tied at 12 cases.

On the other hand, 10 counties had one case each, which was the lowest.

For MP seats, Kakamega County had the highest number of cases filed, standing at 11, closely followed by Nairobi, Kisii and Kilifi counties, which stood at nine, eight and seven respectively.

Five counties had one case each.

As at today, 79 cases are pending determination.

Election petitiongOVERNOR aWITIBabu OwinoAlfred Keter