Double loss as election losers face auctioneers over petition costs

An election loser in Vihiga is facing the auctioneer’s hammer after his petition challenging the victory of a ward representative was thrown out with costs.

Banja Member of County Assembly (MCA) Collins Ayugu was awarded Sh250,000 by Hamisi Principal Magistrate Melanie Ochieng', who dismissed a petition filed by Mr Noah Mbwanga.

Mr Mbwanga is also required to pay the Independent Electoral and Boundaries Commission (IEBC) Sh300,000 for costs incurred by the election's agency.

The winner is pushing to have the challenger’s land auctioned to recover the money.

On Monday morning, Mr Ayugu said he had engaged auctioneers to sell Mr Mbwanga’s land to collect his money.

"The petition was dismissed with a cost of Sh550,000. If he (the petitioner) will not be able to pay soonest, his land will be auctioned," he said.

Mr Mbwanga's legal team is planning to appeal the judgment saying they are not satisfied with it.

The Banja case adds to the long list of hefty costs petitioners are facing after losing cases. Hundreds, if not thousands of petitions were filed in court challenging the results of the August 9 General Election for various seats across the country.

On February 9, Justice David Kemei upheld the victory of Busia Governor Paul Otuoma and slapped his rival, Mr John Bunyasi, with Sh3 million in costs to be paid to the defendants.

Justice Kemei said the petitioner did not meet the threshold to overturn the declaration that made Mr Otuoma the governor.

"In view of the foregoing observations, it is my finding that the petition lacks merit. It is, therefore, dismissed with costs capped at Sh3 million to be shared among the three respondents," he said.

On February 16, a similar fate befell three residents of Kilifi County after the High Court dismissed their petition against the election of Governor Gideon Mung'aro. They were ordered to pay Sh6.5 million in costs.

And in November last year, the petition by Mr James Ndeda challenging the election of Vihiga Senator Godfrey Osotsi failed to start after the High Court dismissed it with costs amounting to Sh800,000 saying it was incurably defective.

This was after Mr Osotsi filed preliminary objections stating that Mr Ndeda had failed to pay the requisite security of Sh500,000 and serve the respondents within stipulated timelines.

While ruling on the preliminary objections, Justice Joseph Raphael Karanjah termed the petition as improper, incompetent, invalid and fatally defective.

Out of the Sh800,000 costs, Sh500,000 would go towards footing the costs of the application of the petition while the remaining Sh300,000 was to be shared among the respondents.

During the hearing of the petition by Mr Mbwanga at Hamisi law courts, IEBC had asked for an award of Sh1.5 million in costs to be paid by the petitioner.

Modest compensation

In its submissions, IEBC said this would be "a modest compensation" even as Mr Ayugu asked for a Sh5 million award in costs to be paid to him by the petitioner.

Mr Ayugu argued that Sh5 million would be adequate compensation.

IEBC defended its demand of Sh1.5 million, pegging it on the time it spent to defend the petition, undertake research, pleadings, prepare witnesses and file submissions.

Mr Ayugu submitted that extensive issues were raised and that he called witnesses, the reason he asked the court to award him Sh5 million to be paid by the petitioner.

The magistrate said the petitioner did not make any submissions on costs but had prayed that the court should declare him the actual winner of the August 9, 2022 poll and order the respondents to pay the costs of the petition.

Mr Ayugu was declared the winner on August 11, 2022 after garnering 2,033 votes, against Mr Mbwanga's 1,854 votes, results that were later contested in court.

Ms Ochieng', however, dismissed all the six prayers that were sought by the petitioner and went ahead to make a determination on the costs after the submissions by the respondents.

“I have taken into account submissions herein on costs and I find that taking into account issues raised, a total cost of Sh300,000 shall be payable to IEBC by the petitioner,” Ms Ochieng' said when she delivered the judgment.

And added: "I further find that an amount of Sh250,000 shall be payable to Collins Ayugu by the petitioner."

She said she reached the decision after the court found and held the petition "must be dismissed on all the prayers sought by the petitioner".

This, she said, left the court with the issue of costs to determine, adding that this was in line with the Election (Parliament and County Elections) Petition Rules 2017, which provides that the election court may at the conclusion of a petition make an order on costs.

The order, she added, specifies the total amount of costs payable, the maximum of costs payable, the person who shall pay the costs and the person to whom the costs shall be paid.

The team that worked with Mr Mbwanga, the petitioner, said they are planning to move to the High Court to appeal the judgement before the lapse of the 14-day window.