Poll losers now stare at costly petitions

Evans Kidero

Former Nairobi governor Evans Kidero (left) talks to his lawyer Kevin Oriri at Homa Bay High Court on October 28, 2022. The former governor challenged and lost the election of Governor Gladys Wanga. 

Photo credit: George Odiwuor | Nation Media Group

A host of poll losers have been slapped with petition costs running into millions of shillings in a double tragedy for the politicians who are still counting losses after having splashed more cash in last year’s campaigns.

Some of the losers have been ordered to pay their opponents and the Independent Electoral and Boundaries Commission (IEBC) petition costs worth as much as Sh4 million, which puts some of them at risk of facing the auctioneer’s hammer if they fail to raise the required monies.

Documents by IEBC tabled in Parliament show that poll losers owe the commission a total of Sh403 million in petition costs accrued in petitions that arose from the 2013 and 2017 poll petitions, lifting the lid on the cost implication in challenging election outcomes.

Some of the petitioners have described the costs as punitive and with potential to discourage losers from seeking legal redress. But some lawyers and politicians say the cost element is meant to control frivolous litigations.

“It is the nature of the court proceedings meant to mitigate frivolity. In the Presidential petition, you must have a million shillings for you to file a case. It is meant to stop people from filing frivolous cases. Our judicial system is also expensive in nature. At times it may discourage genuine cases,” says constitutional lawyer Bobby Mkangi.

Lawyer Danstan Omari says it is standard practice for petitioners to bear the cost of their cases, and that the cost also helps to limit petty cases from flooding courts.

Filing fee

“If you choose to go to court, you have to pay a filing fee. In the event you lose, you have to pay the respondent because the person is being dragged to court and has to hire a lawyer and pay for other expenses,” says Mr Omari.

In Homa Bay, former Nairobi Governor Evans Kidero has been ordered to pay Sh3.5 million as cost of the case he lodged challenging the win of Governor Gladys Wanga.

Justice Roselyne Aburili dismissed Dr Kidero’s petition for lack of merit and slapped him with the cost for expenses Ms Wanga and IEBC incurred.

He is required to pay IEBC Sh1 million while Ms Wanga and her deputy Oyugi Magwanga will take Sh1.5 million with ODM pocketing the remaining Sh1 million.

Dr Kidero told Sunday Nation that it was unfair to punish petitioners.

He questioned why the court slapped him with the petition costs even after the judge admitted there were minor irregularities in the election.

“Seeking for justice is a right for everyone and should not be made to be expensive. Someone seeking justice should not be penalised,” Dr Kidero said.

“The court admitted that there were minor irregularities. So why should I be penalised for saying there were irregularities?” he posed.

In Malava, Mr Seth Panyako was slapped with a Sh4 million cost after his petition challenging the election of MP Malulu Injendi was dismissed.

Judge Rachael Rotich ruled that the petitioner failed to prove the election was marred with malpractices including voter bribery, intimidation, violence and ballot stuffing, and ordered him to pay the respondents in the case the amount.

In Kimilili, Brian Khaemba who went to court to challenge the win of MP Didmus Barasa has been ordered to pay Sh2.7 million.

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