Poll petitioners left with huge bills as cases collapse

Narc-Kenya leader Martha Karua attends proceedings of the case she filed against the election win of Kirinyaga Governor Anne Waiguru at the Kerugoya High Court, on November 15, 2017. The petition was dismissed. PHOTO | JOSEPH KANYI | NATION MEDIA GROUP

What you need to know:

  • In Kisii, two petitioners challenging Senator Sam Ongeri’s win will have to settle a bill of Sh8 million.
  • Martha Karua was also asked to pay Sh10 million after her petition against the election of Kirinyaga Governor Anne Waiguru was struck out.

Election petitioners who have lost cases are not only dealing with the pain of dismissal but also a huge cost slapped on them as judges continue to throw out dozens of prayers to nullify results of August polls.

Having just come from an expensive and gruelling election, the petitioners are not only nursing the pain of losing at the ballot and before the courts, but also having to dig into their pockets to pay the costs imposed by the courts and those due to lawyers.

Kanu secretary-general Nick Salat’s Sh67 million bill remains the country’s most expensive election petition.

Mr Salat, who contested and lost the Bomet Senate seat to Wilfred Lesan, had challenged the election.

He is to pay Mr Lesan Sh57.6 million and 10.4 million to the Independent Electoral and Boundaries Commission.

SUPREME COURT
At the closure of the petition-filing window on September 8, a total of 277 cases had been lodged challenging outcomes of six races.

This represented a rise by 89 from the 188 petitions filed after the 2013 General Election.

The high number of petitions are believed to have been buoyed by the Supreme Court ruling on September 1, which made the historic decision to annul President Uhuru Kenyatta’s win.

As the cases head to conclusion, petitioners have started feeling the heat.

Most of the bills slapped on petitioners are not below Sh3 million in the handful of cases already determined.

That excludes those of MCAs where costs are relatively lower.

WAVINYA LOSES
The latest high profile case to be dismissed is the one lodged by former gubernatorial candidate Wavinya Ndeti against the election of Machakos Governor Alfred Mutua.

Her loss last Friday came with a Sh10 million bill. Sh5 million will go to Dr Mutua while the rest is due to the IEBC.

Justice Aggrey Muchelule ruled that Ms Ndeti, the former Kathiani MP, did not provide adequate evidence to support her case against the governor.

Last November, Narc-Kenya leader Martha Karua was also asked to pay Sh10 million after her petition against the election of Kirinyaga Governor Anne Waiguru was struck out by Kerugoya High Court judge Lucy Gitari.

While dismissing the case, Justice Gitari termed the petition as “fatally defective, hopeless and incurable”, arguing it did not comply with the Election (Parliamentary and County) Petition Rules 2017.

KARUA APPEALS
The former Gichugu MP has however appealed the case.

She has raised objections against the bill given to her saying it was too high for a case that did not go through a full trial.

In Nairobi, the case filed against Governor Mike Sonko’s win by two voters Japheth Muroko and Zachaeus Oliech was also dismissed by High Court judge Justice Msagha Mbogholi after the petitioners asked to drop it, citing security fears.

The judge however struck out the case instead and slapped them with a bill of Sh5 million.

The Nation spoke to some of the petitioners who go to court on behalf of politicians and found out that some are left to their own devices when they don’t deliver positive results.

EVIDENCE
In Kisii, two petitioners challenging Senator Sam Ongeri’s win will have to settle a bill of Sh8 million.

Lady Justice Winfrida Okwany in her judgement last Monday said the petitioners, George Ogake and Charles Orito, did not produce sufficient proof for the court to invalidate the polls.

Most of the cases dismissed by the High Court, so far, have come with high costs.

Mr Robinson Kigen, a lawyer who has handled elections before, said the courts seem to be sending a message that they will not entertain cases by people who want to misuse them.

“The courts are trying to send a message to those who want to lodge frivolous cases. They want to sieve busy bodies from serious petitioners,” he said.

COSTS
He however added that if the costs continue to rise, they might act as deterrent to poor people with genuine cases.

“The challenge with such high costs is they could be punitive to many people with genuine cases.

"We might easily end up restricting the petitions to only the affluent in the society as they will be the only ones able to settle the high costs of petitions,” he added.

But Makueni Senator Mutula Kilonzo Jr doesn’t think the current costs are as high as was the case before.

“The cost of a case is normally determined according to the work done and the time spent. There is no law to guide it because it is according to what happens in court,” Mr Kilonzo Jr, also a senior lawyer, said.