- Three judges said the high costs was taking courts back to the old days when they were notorious for imposing very high costs in election petitions.
- They said high costs could discourage aggrieved parties from seeking justice.
The High Court is on the spot over the hefty costs judges have slapped on unsuccessful petitioners, running into hundreds of millions of shillings.
The Court of Appeal has expressed its dismay over the “inordinately high amounts” slapped on politicians and private citizens who were aggrieved with elections results and had filed petitions.
Judges Mohamed Warsame, Daniel Musinga and Otieno Odek on Friday termed the skyrocketing costs as going back to the old days when courts were notorious for imposing very high costs in election petitions.
The judges questioned why the High Court reverted to the old trend of dismissing election cases and awarding large sums in costs yet the Judiciary had formulated guidelines on capping of costs.
“Despite this rule, the current trend in the capping of costs at inordinately high amounts shows that we are going back to the era where costs in election petitions were very high.
“Capping of costs was intended to curb the practice of awarding large sums in costs,” they ruled.
The Court of Appeal Judges faulted their colleagues at the High Court for failing to borrow from the relatively fair costs of suits awarded to aggrieved parties following the 2013 elections.
They cited cases of Ms Mabel Muruli and former Kiambu Governor Ferdinand Waititu who were each ordered to pay Sh5 million costs of cases after losing their petitions challenging the election of Kakamega Governor Wycliffe Oparanya and IEBC and former Kiambu Governor William Kabogo in 2013, respectively.
They also cited a case where former Kisumu Governor Jackton Ranguma was ordered to pay Sh2.5 million to Governor Anyang’ Nyong’o, IEBC and the county returning officers.
“Although this observation is obiter, the new electoral dispute regime has introduced a mechanism for capping of costs in election petitions.
“This was certainly intended to keep costs at a manageable level so as not to limit access to justice by litigants of moderate incomes.
“In many petitions filed after the 2013 General Election that went into full hearing, costs were capped by courts at between Sh1.5m to Sh2m,” the judges stated.
The Judges made the remarks when they quashed the Sh10 million penalty slapped on former Cabinet minister Martha Karua by the High Court sitting in Kerugoya after it dismissed her petition challenging the election of Kirinyaga Governor Anne Waiguru.
The Judges observed that the Sh10 million was excessive even if shared amongst Ms Waiguru, IEBC and the returning officer Seki Lempaka.