Chief Justice David Maraga has gazetted new rules that will see those challenging presidential election pay Sh1 million as security, and a further Sh500,000, which is non-refundable, as a fee for filing the case.
The rules meant to “bring order” will guide both the magistrates courts and High Court.
The rules are contained in a gazette notice and circulars to the Supreme Court dated June 16.
After the petition, any party filing a response will be required to pay Sh20,000 for the Supreme Court to consider it and a further Sh4,000 for filing notice of intention to oppose the petition.
Those challenging election of governor, senator and woman representative and MPs will pay Sh30,000 to the High Court while those challenging election of an MCA will part with Sh15,000.
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The amount paid to the High Court and magistrates court will be besides another Sh100,000 that will be used as security which will be refunded.
The new regulations will replace the Elections (Parliamentary and County Elections) Petition Rules, 2013. They state an appeal from the magistrates court will be heard and determined by the High Court within three months.
But the rules have not provided for the Attorney General and Director of Director of Public Prosecutions or their representatives to attend an election petition trial as was the case in 2013.
Law Society of Kenya (LSK) deputy chairman Faith Waigwa said the new rules will keep out vexatious litigants who have clogged courts with petitions in the past.
“The fees are fair and will help keep away people who flood courts with unnecessary cases. During the party nominations, Jubilee had a very high number of cases because the filing fee was Sh1,000. A total of 500 cases were filed by dissatisfied aspirants,” Waigwa, who handled the Jubilee Party tribunal cases, observed.
She added: “I do not think the fees set by the Judiciary lock out people from filing election petitions. They will only ensure people are not filing frivolous cases.”
In the rules set to govern the 2017 elections petitions, a case will not end in an event a person who filed it dies.
Lawyer Okong’o Omogeni concurred the fees are fair but added they will hurt lawyers who will be working for parties.
He said lawyers would suffer because their charges would be pegged on the ceiling set by the CJ.
However, Nominated Senator Agnes Zani and Kajiado West MP Moses ole Sakuda said the fees are too high and might deny justice to genuine petitioners.
“The fees set are on the higher side. The rationale in this case is aimed at ensuring only those who feel strongly that they have a case will go through the process. The Judiciary should tell us if part of the fees will be for administrative purposes,” said Zani, who is also the ODM secretary general.
She continued: “The cost of a petition may be out of reach for some deserving litigants who might be locked out due to finance constrains.”
Sakuda said many will be denied justice due to the high fees.
“Everybody has a right to be heard. People who will be denied justice after they lose unfairly will miss an opportunity to serve their people because of financial constraints,” he said.
Makueni Senator Mutula Kilonzo Jnr and MPs Jakoyo Midiwo (Gem), Kimani Ichungwa (Kikuyu) and Kanini Kega (Kieni) said the move by the Judiciary would keep away jokers.