Lawyers eyeing windfall as poll losers head to courts

2022 elections

IEBC officials and police queue to sign off ballot boxes at Jamuhuri High School, Tallying Center for Starehe Constituency, Nairobi on August 10, 2022.

Photo credit: Billy Mutai | Nation Media Group

Lawyers are keenly watching as results trickle in and are ready to receive instructions from parties dissatisfied with the electoral outcome.

In the last General Elections, lawyers were paid up to Sh202 million by the Independent Electoral and Boundaries Commission (IEBC) to defend the commission in courts across the country.

A huge amount was gobbled by the presidential election petition filed at the Supreme by Raila Odinga, challenging President Uhuru Kenyatta’s win.

The figure was a reduction from Sh390 million paid to 14 law firms that handled the 2013 presidential election petition at the apex court.

Then, top lawyers were paid between Sh25 million and Sh40 million to represent the electoral body and its chairman, during the marathon hearing of the case.

The amount was brought down after the commission capped the maximum figure to be paid to a law firm handling gubernatorial and woman representative elections at Sh3 million, plus 16 percent tax.

To represent the commission in petitions challenging the election of MPs, lawyers were paid Sh2 million, while the figure for those defending the commission for cases touching Members of County Assembly (MCAs) was capped at Sh700,000.

Going by the trend in the past three general elections, the number of election petitions is set to rise. During the elections in 2017, there were 388 election petitions filed in courts across the country, while 2013 witnessed 188 cases, which were filed contesting various elective seats.

Of the 388 petitions filed after the 2017 general election, 174 were challenging elections of governors and members of county assemblies, 125 were contesting the victory of MPs, senators and women representatives. The highest number (98), of petitions were challenging the election of MPs.

The courts, however, immediately dismissed 42 petitions nine of which were struck out because the petitioners failed to deposit security for costs.

To challenge a presidential election, a petitioner is required to deposit Sh1 million to act as security for costs plus another Sh500,000 for lodging of the petition, while anyone intending to challenge the election of an MP must deposit Sh500,000 in court.

Eleven cases were dismissed because they were not drafted as required by the rules, while 13 others were withdrawn.

The Independent Electoral and Boundaries Commission (IEBC) is a respondent in the cases filed challenging the outcome of an election. The electoral body is, therefore, forced to spend millions in hiring advocates to defend it in the cases.

In the past four years, the commission spent Sh2.6 billion in legal fees.

Between 2018 and 2021, the commission spent 12.3 percent of its total expenditure on legal fees with the highest being Sh859.3 million in the financial year 2017/2018.

Some of the cases are the ones challenging the multi-billion shilling tender for the supply of ballot papers to be used in the elections.

From the 2017 General Election, the commission paid up to Sh202 million in legal fees to advocates. A huge chunk of the amount went to law firms that defended the IEBC at the Supreme Court for the 14-day hearing of the presidential election petition.

The case was filed by National Super Alliance (Nasa) candidate Raila Odinga and his running mate Kalonzo Musyoka.

The top court made history when a bench led by former Chief Justice David Maraga, nullified the election of President Uhuru Kenyatta and his deputy William Ruto, in a majority decision.

The judges ruled that the IEBC did not conduct the presidential election in conformity with the Constitution and electoral law.

Justices (Retired) Jackton Ojwang’ and Njoki Ndung’u dissented saying the alleged irregularities were not proved and if any, they were not massive to lead to the cancellation of the outcome. Mr Odinga has this time teamed up with Martha Karua of Narc-Kenya under the Azimio La Umoja coalition, up against Mr Ruto of Kenya Kwanza Alliance and his running mate Rigathi Gachagua.

While nullifying President Kenyatta’s win after the August 8, 2017 election, the apex court directed the electoral body to conduct a repeat poll within 60 days. But even after conducting the repeat poll as directed by the Supreme Court, two more election petitions were filed at the top court, challenging the outcome.

This was after Nasa boycotted the presidential election affecting the voter turnout. IEBC announced after the polls that only 38.8 percent of the registered voters turned out to vote on October 26 and the commission declared President Kenyatta the winner with over 98 percent of all the votes cast.

Among the questions raised in the second presidential election petition were whether Kenyatta garnered 50 percent plus one votes and 25 percent in at least 24 counties.

It was pointed out for example, that the repeat elections were not held in some 3,635 polling stations representing 1,770,475 voters. The court, however, dismissed the petitions.

A number of cases including that of Wajir gubernatorial position were nullified by the High Court and the decision affirmed by the Court of Appeal only for the Supreme Court to reverse the judgment.

Whereas the election petitions are supposed to be concluded within six months, some exceeded the hearing deadlines because of multiple applications, piling to the costs to be incurred.

Some cases, such as that filed by Ms Karua even moved outside the Kenyan boundaries as the former Justice minister moved to the regional East African Court of Justice after her case was dismissed by the Supreme Court. Ms Karua was challenging the election of Kirinyaga governor Anne Waiguru but it was dismissed for lack of evidence.

At the EACJ, Ms Karua was awarded Sh2.7 million after faulting the Supreme Court for dismissing her second appeal.