Appeal Court turns down Laikipia Governor's request in legal costs row

The Court of Appeal has declined a request by Laikipia Governor Ndiritu Muriithi to stop a voter, who sued him for associating with Jubilee Party during the 2017 elections, from demanding payment of legal costs of the case.

The governor, who was elected as an independent candidate, wanted the court to temporarily bar Mr Peter Ngugi Ndonyo from claiming Sh2.5 million, being half of the legal costs.

Mr Muriithi had argued that the voter’s demands should be put on hold, pending determination of an appeal that is challenging the legal bill of Sh5 million.

He moved to the Appellate Court after High Court Judge Weldon Korir upheld a decision of the Deputy Registrar to slap him with costs of the case amounting to Sh5 million.

Pending determination of the appeal, Mr Muriithi wanted the Appellate Judges to suspend execution of Justice Korir’s ruling.

But the Appellate Judges ruled that the governor had failed to demonstrate that his appeal will be rendered nugatory, should the amount of Sh2.5 million he had deposited in a joint account be released to Mr Ndonyo.

Justices Asike Makhandia, Kathurima M’Inoti and Fatuma Sichale said Mr Ndonyo had demonstrated that he is a person of means.

They further said Mr Ndonyo showed he will be in a position to refund the amount paid in the event that the intended appeal by the governor succeeds.

While dismissing the application, the judges said Mr Ndonyo had gone to great lengths to show his financial ability to pay to the governor any money  found to be payable to him.

On perusal of the governor’s intended grounds appeal, the judges said they were satisfied the grounds are not frivolous, meaning the case is arguable.

“Of course, we bear in mind that an arguable appeal is one that raises a point that deserves consideration by the Court of Appeal and not one that must necessarily succeed. On the nugatory aspect, we are satisfied that the intended appeal will not be rendered nugatory if stay is not granted considering that this is a money decree,” said the judges.

In opposing the governor’s application, Ndonyo’s lawyer David Kirimi told the court that his client had been awarded a sum of Sh5,081,150 on January 8, 2018. And that the court had granted the governor a conditional stay of execution pending the hearing of his case against the legal bill.

The court heard that the governor had been ordered to deposit a sum of Sh2.5 million in a joint interest-earning account in the names of the parties’ advocates.

Lawyer Kirimi said after the High Court on May 7, 2020 dismissed the governor’s case, Mr Ndonyo asked the governor to sign off the deposited funds. But Mr Muriithi had failed to do so.

The dispute emanated from the judgment of the Independent Electoral and Boundaries Commission (IEBC) Electoral Code of Conduct Enforcement Committee dated July 20, 2017.

In the said judgment, IEBC had ordered Mr Muriithi to pay a Sh500,000 fine and remove posters bearing Jubilee Party colours and images of President Uhuru Kenyatta and his Deputy William Ruto.

The governor, who was an independent candidate, was also ordered to destroy his campaign material after he was found in breach of the electoral code of conduct.

The IEBC had ruled that using President Kenyatta's and DP William Ruto’s portraits was in breach of election rules.

Mr Muriithi moved to the High Court seeking to suspend execution of the IEBC ruling but Justice Richard Mwongo dismissed his application.

He had also appealed against Justice Mwongo’s ruling on grounds that the judge erred in law in concluding that IEBC could prosecute and arbitrate over electoral offences in enforcement of the code of conduct.

The governor had also faulted the judge for limiting his freedom of association and his political choices for other positions in which he was not vying.

He said it was wrong for the judge to find that prohibited plagiarism includes the use of a photograph of the presidential candidate for the Jubilee Party, Mr Muriithi having offered himself to run as an independent candidate.