The High Court is on the spot over the hefty costs judges have slapped on unsuccessful petitioners, running into hundreds of millions of shillings.
The Court of Appeal has expressed its dismay over the “inordinately high amounts” slapped on politicians and private citizens who were aggrieved with elections results and had filed petitions.
Judges Mohamed Warsame, Daniel Musinga and Otieno Odek on Friday termed the skyrocketing costs as going back to the old days when courts were notorious for imposing very high costs in election petitions.
The judges questioned why the High Court reverted to the old trend of dismissing election cases and awarding large sums in costs yet the Judiciary had formulated guidelines on capping of costs.
“Despite this rule, the current trend in the capping of costs at inordinately high amounts shows that we are going back to the era where costs in election petitions were very high.
“Capping of costs was intended to curb the practice of awarding large sums in costs,” they ruled.
The Court of Appeal Judges faulted their colleagues at the High Court for failing to borrow from the relatively fair costs of suits awarded to aggrieved parties following the 2013 elections.
They cited cases of Ms Mabel Muruli and former Kiambu Governor Ferdinand Waititu who were each ordered to pay Sh5 million costs of cases after losing their petitions challenging the election of Kakamega Governor Wycliffe Oparanya and IEBC and former Kiambu Governor William Kabogo in 2013, respectively.
They also cited a case where former Kisumu Governor Jackton Ranguma was ordered to pay Sh2.5 million to Governor Anyang’ Nyong’o, IEBC and the county returning officers.
“Although this observation is obiter, the new electoral dispute regime has introduced a mechanism for capping of costs in election petitions.
“This was certainly intended to keep costs at a manageable level so as not to limit access to justice by litigants of moderate incomes.
“In many petitions filed after the 2013 General Election that went into full hearing, costs were capped by courts at between Sh1.5m to Sh2m,” the judges stated.
The Judges made the remarks when they quashed the Sh10 million penalty slapped on former Cabinet minister Martha Karua by the High Court sitting in Kerugoya after it dismissed her petition challenging the election of Kirinyaga Governor Anne Waiguru.
The Judges observed that the Sh10 million was excessive even if shared amongst Ms Waiguru, IEBC and the returning officer Seki Lempaka.
“We therefore think that such a huge cost as awarded here by the learned judge would result in a miscarriage of justice as there was no basis for capping the costs at Sh10 million.
“Having found that the learned judge erred in law in striking out the petition, the order made on costs as a result cannot stand,” they ruled.
Although their judgment was pegged on Ms Karua’s appeal, their observation was informed by several similar cases around the country.
Voter Peter Odima and Mr Sammy Ndung’u were each ordered to pay Sh12 million costs after losing their cases challenging the election of Busia Governor Sospeter Ojaamong and his Laikipia counterpart Nderitu Muriithi, respectively.
On Friday, Justice Dorah Chepkwony ordered former Lamu Governor Issa Timamy to pay costs of Sh12 million to Governor Fahim Twaha after losing the petition he filed at the High Court in Malindi.
Two Trans-Nzoia voters – Robinson Simiyu and Alpha Katai – who unsuccessfully filed a case against Governor Patrick Khaemba, and Machakos politician Wavinya Ndeti who lost her petition against Governor Alfred Mutua, were ordered to pay costs of Sh10 million.
Kisii voters George Ogake and Charles Orino, who lost their petition challenging Kisii Senator Sam Ongeri’s victory, and former Mombasa Senator Hassan Omar, who unsuccessfully challenged Governor Hassan Joho’s election, were each ordered to pay Sh8 million.
According to Justices Warsame, Musinga and Odek, such high costs are an impediment to the constitutional principle under Article 48 of the Constitution of access to justice.
They questioned how judges arrived at such figures.
“It is up to the election court to determine whether a party would be awarded costs or not and in doing so, the court must be guided by the principles of fairness, justice and access to justice.
“It is meant to compensate a successful litigant. It is not a punishment or a deterrent measure to scare away litigants from the doors of justice,” they stated.
The three Court of Appeal judges indicated that the courts handling election petitions should exercise their discretion with caution not to impose hefty awards, as this could deter Kenyans aggrieved by election outcomes from seeking justice.
“This Court would only interfere with such discretion if it is seen that there was misdirection in some matter and as a result, the judge arrived at a wrong decision or, that he or she misapprehended the law or failed to take into account some relevant matter,” observed the Judges.
“In our understanding, the capping of costs provided under Rule 30 of the Petition Rules, 2017 was to ensure that parties approach courts without fear of being subjected to excessive costs… High costs are an impediment to the right of access to justice, and are not meant to be punitive.”