Election petition losers risk imprisonment

Petitioners who unsuccessfully contested the election of Governors and Members of Parliament in the August polls have been dealt major blows across the country with courts slapping them with hefty bills as cost of suits.

Three ordinary voters in Trans Nzoia and Busia Counties have a Ksh.22 million bill to shoulder, while prominent political players like Martha Karua, Hassan Omar, Simeon Lesirma and Kazungu Kambi have pending petition costs running to Ksh.30 million.

The unsuccessful petitioners have no option but to foot the hefty bills or contest them at the appellate court.

Former Law Society of Kenya Chairman Eric Mutua explains that failure to pay costs awarded by the courts could see the petitioner committed to civil jail if they have no assets that can be auctioned to foot the bill.

“We call them the decree holder, the person who has the award in his favour can instruct an auctioneer to look if you have assets to be attached to recover the cost… If you have no assets, you will be committed to civil jail for non payment,” stated Mutua.

Critics, however, argue that such hefty awards can be an impediment to pursuit for justice by discouraging future petitioners from pursuing electoral justice in courts, hence, encouraging impunity at the ballot.

The highest suit cost from the 2017 elections was slapped on Peter Odima, who contested the election of Busia Governor Sospeter Ojaamong.

High Court judge Hatari Waweru ordered Odima, an aide to former Funyula PM Paul Otuoma, to pay Ojaamong and IEBC Ksh.12 million.

When Alfred Chore and Robinson Mwanga contested the election of Trans Nzoia Governor Patrick Khaemba at the Kitale High Court, local pundits termed it a David vs Goliath duel. However, a verdict delivered by Judge Anthony Mrima on Friday not only upheld Khaemba’s election but left the two petitioners with a Ksh.10 million bill to clear.

“The fine is just to scare away people who want to seek electoral justice and democracy,” lamented Chore after the verdict.

While Chore and Mwanga claim they have no problem footing the Ksh.10 million suit cost, its the rationale used to set the award that jolts them.

“We have consulted with our legal teams and we will be heading to the Court of Appeal the coming week to challenge Justice Mrima’s verdict and the Ksh.10 million costs,” said Robinson Mwanga.

NARC-Kenya leader Martha Karua was compelled by the Kirinyaga High Court to foot a Ksh.10 million bill, when her petition contesting the election of Governor Anne Waiguru was dismissed at the preliminary stage. She has since appealed the verdict.

“One can legitimately argue that if you award a Ksh.10 million or Ksh.15 million cost, there is an extent to which you are denying an ordinary person or a person who has lost an election their right to access justice because they will fear filing an election petition on account that they be slapped with lost of costs after losing the petition,” says former Law Society of Kenya Chairperson Eric Mutua.

Former Mombasa Senator Hassan Omar, who unsuccessfully tried to dislodge Governor Hassan Joho in the August contest was ordered to pay Ksh.8 million as cost of his suit by High Court judge Lydia Achode.

Former lawmaker Simeon Lesirma also has to part with Ksh.6 million after his petition challenging the election of Samburu Governor Moses Lenolkulal was dismissed by judge Roseline Wendoh.

In Kilifi, Judge Weldon Korir dismissed former cabinet minister Kazungu Kambi’s petition and slapped him with a Ksh.4 million bill, questions emerging on the high costs awarded by the courts.

“Part of the considerations for the court to award hefty costs is considering the fact that the lawyer and litigants basically focused on one file for 6 months and there is a lot of work to be done,” says Mutua.