Most politicians are still struggling to settle the cost of election petitions slapped on them by the courts.
It is a situation that has left some of the poll losers under the mercy of the auctioneers’ hammer or their rivals who won the election, as they seek an out-of-court settlement to save their properties from being sold to settle the cost of the election petitions.
From those who opted to withdraw their petitions to politicians who soldiered on to the Supreme Court to challenge their rivals’ victory, the cry is the same countrywide, with most of those interviewed by The Standard vowing not to file election petitions if they lose this time around.
This is even after the Judiciary and the Independent Electoral and Boundaries Commission (IEBC) set a cap on the cost of the cases to save petitioners from perceiving it as a punishment.
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Unlike the previous elections where the courts slapped hefty penalties ranging between Sh2 million to Sh70 million on those who lost their legal battles in the election process, the amount was reduced based on the elective seats.
In what turned out to be the country’s most expensive election petition, Kanu Secretary General Nick Salat in October 2013 was slapped with a Sh70 million bill after unsuccessfully filing an election petition.
Salat had contested and lost the Bomet Senatorial seat to Wilfred Lesan. He challenged the elections and the High Court in Kericho upheld Lesan’s win.
Lesan, a United Republican Party (URP) candidate, had garnered 115,931 votes while Salat who contested on a Kanu ticket emerged second with 98,036 votes.
Salat, in the petition, claimed there were various polling stations where the votes cast exceeded registered voters.
He complained of grave incidents of electoral malpractices, irregularities, fraud, intimidation, bribery, and coercion in the conduct of the election. The elections, according to him, were not free and fair.
Justice Aggrey Muchelule, in a judgment delivered on August 19, 2013, said the allegations made by Salat were not proved.
“Under Section 86 (1) of the Elections Act, I certify that the allegations made in this petition challenging the election of the second respondent (Lesan) as the senator for Bomet County have not been proved. Wilfred Rotich Lesan is thus the duly elected senator of Bomet County,” read the judgment.
Salat moved to the Court of Appeal and later to the Supreme Court where his case was disallowed and was ordered to pay the cost.
The Kanu secretary-general is, however, not the only one whose mission to seek justice has returned to haunt him.
Former East African Minister Musa Sirma is also staring at auctioneers hammer over election petition loss.
Sirma contested for Eldama Ravine parliamentary seat and lost to Moses Lessonet.
He, however, protested the election results and filed a suit at the High Court in Kabarnet. He had sued IEBC, the returning officer, and Lessonet.
Lessonet had garnered 20,669 votes against Sirma who got 20,206.
Justice Edward Muriithi in March 2018, said Lessonet was validly elected.
The court said there was no election malpractice of a criminal nature to warrant revocation.
Claims that voters were bribed and Sirma’s agents sent out of polling stations, according to the court, were not proved beyond the required standard.
“The third respondent (Moses Lessonet) was validly elected as MP of Eldama Ravine,” ruled Justice Muriithi.
Sirma was ordered to pay Lessonet Sh2 million and a similar amount to other defendants.
He then lodged an appeal protesting the decision by the court.
He said the amount he was ordered to pay is Sh4 million and not Sh6million. To Sirma, IEBC and the returning officer are one and the same.
The Court of Appeal, however, dismissed the appeal.
Sirma on October 4, 2021, moved back to court claiming there is a deliberate misunderstanding of the cost awarded in the petition.
“To be precise, the sum of Sh4 million ceiling, noting that there is an unjust and illegal claim by the respondents of Sh6 million, of sums not awarded, and which were subject to taxations,” stated Sirma in his application.
The amount awarded to the parties, he said, was irregular and excessive.
Lawyers Kipkoech Ng’etich and Allan Kibet, in response on behalf of Lessonet, said Sirma is not desirous to pay the parties he had sued.
“The petitioner claims that the respondents, as the judgment creditors have expanded the award of the court beyond judgment capping of Sh4 million which is not true, but even so, he has not paid the Sh4 million which he does not dispute,” stated lawyer Kibet.
Sirma in October 2021 had his property attached over a Sh888,000 debt he still owes Lessonet.
Auctioneers, acting on instructions from Gordon Ogola and Kipkoech Company Advocates, attached 20 cows, each valued at Sh35,000. The cows, as per the proclamation, have been substituted with two motor vehicles and one loader.
Sirma had on October 13, 2021, obtained orders barring the execution. The stay was granted on the condition that he deposits Sh5 million in court within 90 days.
Sirma’s lawyer Steve Biko said they will be back to court on January 22, 2022, for inter partes hearing on whether the amount claimed are justified and whether it has surpassed the ceiling of the High Court and if the figures have been taxed.