Lightning never strikes the same place twice, the old adage goes. But it is a different case for politicians who moved to court after losing their respective seats because majority could be staring bankruptcy in the face.
It is a case of double tragedy: Some petitioners are finding themselves in emotional and financial quagmire—losing the political race and losing millions of shillings—notwithstanding the current tough economic times.
The huge costs that poll petition losers have been slapped with have elicited debate, with Kenyans wondering if the amounts are justified. By the end of last week, the collective amount stood at about Sh200 million. Actors in legal circles are now calling for a meeting to find a solution to tame “exaggeration of costs.”
According to the Advocates Remuneration Order of 2014, an advocate representing a party in an election petition should be awarded a minimum of Sh500,000. However, the presiding judge is the only one mandated by law to fix a reasonable amount for parties in a case.
For instance, former MP Nick Salat was ordered to pay Sh67 million as costs of the petition case against former Bomet Senator Wilfred Lesan in 2013. He appealed and the costs were reduced. Costs slapped on Salat remain in highest the Kenya’s history.
The amount awarded, however, is determined by various factors, including the prayers of the petitioner, the complexity of the case and number of lawyers involved.
So far, one the highest cost slapped on a petitioner is Sh10 million in a case in which politician Steve Mbogo was ordered to pay Starehe MP Charles Kanyi Sh5 million and another Sh5 million to the Independent Electoral and Boundaries Commission (IEBC) after his case was thrown out.
And former Deputy Speaker Farah Maalim was ordered to pay Sh6 million after the dismissal of a petition challenging Garissa Town MP Aden Duale’s win. Elsewhere, Lang’ata constituency poll loser Oscar Omoke was ordered to pay MP Nixon Korir and IEBC Sh5 million.
In the Mandera governor petition, Hassan Noor Hassan will be forced to dig deep into his pocket after the court ordered him to pay Governor Ali Roba and IEBC Sh5 million. Lawyer Danston Omar said the costs awarded by courts were capped, based on what advocates in the case spent from the moment the case was filed.
This includes transport expenses, professional fees and time spent. But he, too, agreed that “costs witnessed so far are too punitive and unreasonable. Access to justice should be free and fair to all,” he said.
And, after he lost the Changamwe parliamentary race to Omar Mwinyi, Mohamed Mahmoud Ali, will now have to pay Sh8 million. At the Kabarnet Law Courts, former Cabinet minister Musa Sirma was ordered to pay his bitter rival Eldama Ravine MP Moses Lessonet and IEBC Sh7 million after his petition was thrown out.
Former four-term MP Jakoyo Midiwo suffered a huge blow after the court ordered him to pay Sh3 million in costs after he lost a petition he had filed to challenge the election of Elisha Odhiambo as Gem MP. Others who have been slapped with hefty fines include Kazungu Kambi, who was ordered to pay Sh4 million costs.
The former Cabinet minister will pay Kilifi Governor Amason Kingi Sh1.7 million and Sh2.3 million to IEBC and the returning officer. Lady Justice Lydia Achode ordered former Mombasa Senator Hassan Omar to pay Sh8 million to IEBC and another Sh4 million to Governor Hassan Joho after his petition was dismissed.
In Taita Taveta, High Court judge Erick Ogolla directed parties in a petition filed by Rashid Ahmed challenging the election of Governor Granton Samboja to bear their own costs.
And while dismissing petition filed by Daniel Abwao against Nyali MP and former journalist Mohammed Ali, the judge ordered the petitioner to pay Sh7 million.
In Malindi the court ordered the IEBC to pay the petitioner Rishad Ahmed Amana, Sh3 million in costs, after Justice Weldon Korir ruled that the election for Lamu west constituency was not conducted in accordance with the law.
The same court dismissed a petition file by former Lamu governor Issa Timamy against Fahim Twaha. Judge Dora Chepkwony said Timamy had not proved the allegations presented before court.
Former Likoni MP Masoud Mwahima was also ordered to pay Sh2.5 to Likoni MP Mishi Mboko after the latter’s election was upheld. Ugenya MP Christopher Karani is another casualty after losing a case filed against him by the immediate former MP David Ochieng.