Jillo Kadida
21 June 2008
Nairobi — Double tragedy best sums up what a losing election petitioner goes through.
Apart from the misery of losing out on the petition, he or she is also saddled with debts running into millions of shillings.
Filing a poll petition is not cheap. A petitioner is required to pay a standard fee of Sh25,000 at the High Court to file the suit. This figure is set by the Judicature Act and applies to all election petitions.
On top of this the petitioner is also required to deposit Sh250,000 in court as security.
No limit
They also have to pay costs to the successful party. And the least the winning advocate will ask for is Sh250,000. There is no limit to the maximum amount.
These costs are meant to compensate for expenses the successful party incurred in defending the petition.
They are also intended to discourage people from filing frivolous applications.
Normally, once a party loses a case, the costs are awarded to the winning side, but the court has the discretion to decline to award any costs.
Charging of costs depends on many factors, such as the length of time the case has taken in court, if there is travelling involved and the witnesses called to testify.
The procedure is that the winning advocate files a bill of costs, which both parties may either agree or disagree on.
In the event one party objects to the figure stipulated, then the dispute is referred to High Court deputy registrar who decides what should be paid.
After the registrar makes a decision, the money is given to the client and not the advocate. The bill of costs does not include advocate's fees.
Winning party
When the costs have been awarded, the advocate files the advocate-client costs, which adds up to the total amount of the costs awarded plus half of it (costs).
This implies that if the winning party is awarded Sh1 million as costs, then the advocate will demand Sh1.5 million from the winner.
In a way these expenses serve to discourage those who are not financially well off from pursuing their democratic rights, especially where their cases are genuine.
The courts don't take the issue of non-payment of costs lightly. If an election loser fails to pay up, he or she can be sent to prison. Some even have had their property auctioned.
A case in point is that of former assistant minister Alicen Chelaite who lost a petition and was ordered to pay Sh1.3 million plus the advocate's fees.
Civil jail
She had vied for the Nakuru Town parliamentary seat on Kanu ticket during the 1997 elections, which she lost to Mr David Manyara of DP. She garnered 12,600 votes against Mr Manyara's 26,000.
Her petition was dismissed in 1998 and she was ordered to pay costs. At some point she was even summoned to court over the debt arising out of the petition. She then appeared before a High Court registrar and the parties agreed that she would pay the money in instalments.
The former assistant minister had to be warned by a magistrate that in the event she failed to honour the costs, she risked being committed to civil jail.
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