The Court of Appeal has upheld the election of Kirinyaga Senator Charles Kibiru and the same time affirmed a High Court decision to prevent three voters from pursuing the petition filed by former senator Daniel Karaba.
Justice Milton Makhandia also reduced to Sh5 million the legal cost of Sh10 million slapped on Mr Karaba by the High Court.
While concurring with Mr Karaba that the costs were exorbitant, the judge said the high fee would have sent the wrong signal to litigants and instil fear of access to justice.
“Costs should not send wrong messages to bar others from accessing justice. But courts have discretion on which party would be awarded costs in a case,” said the judge.
Mr Makhandia directed Mr Karaba to pay the Independent Electoral and Boundaries Commission (IEBC) and Senator Kibiru Sh2.5 million each.
In his submissions, Mr Karaba, through lawyer Kibe Mungai, said the costs were punitive since hearing of the petition did not proceed to a conclusion.
“Justice Abigail Mshila erred in awarding punitive, exorbitant and excessive costs against the petitioner. She placed Mr Karaba in the position he would have been had he not withdrawn from the petition,” said Mr Mungai.
Justice Makhandia also upheld the High Court’s decision to stop James Karubiu, Stephen Karua and Nyairo Ondieki from being substituted as the petitioners in the case after Mr Karaba abandoned it.
The judge said one of the intended petitioners, Mr Karubiu, had not shown interest to prosecute the case.
“Electoral disputes are matters of public interest and do not belong only to the petitioners. But there must be seriousness in it,” said the judge.
He concurred with submissions of lawyer Charles Mwongela for the IEBC that two of the intended petitioners were not qualified to pursue the case.
Mr Mwongela said Duke Nyairo and Stephen Karua had committed electoral offences of registering more than once as voters.
“Mr Nyairo and Mr Karua have admitted in court that they are registered as voters in Nairobi, Kisii and Murang’a. They are registered in more than one area which is an offence,” said Mr Mwongela.
He added that another intended petitioner, Mr Karubiu, should also not be allowed for disobeying various court directives.