Court frees voter jailed over Sh9.5m lawyer fees

A voter jailed for failing to pay legal costs of Sh9.5 million in the Mathira parliamentary election petition has been released pending hearing and determination of his appeal against the committal order.

Justice Jairus Ngaah has found Mr Michael Gichuru was unlawfully jailed and the committal order was issued prematurely by the High Court Deputy Registrar Ms Damacline Bosibori in Nyeri.

CIVIL JAIL

Mr Gichuru was sentenced to a one-month civil jail on March 18, this year by the registrar after MP Rigathi Gachagua’s lawyer Mr Wahome Gikonyo complained that he was yet to settle the costs of the petition as ordered on June 8, 2018.

But the 34-year-old photographer based in Karatina town, indicated that he did not deliberately disobey the order as he confessed that he could not afford the amount sought from him.

Through lawyers Sam Kinuthia and Evans Owange, the voter said before he could be committed to jail the MP would have demonstrated to the court that he has means to pay but had declined to do so.

“As a matter of fact, he could not pay his previous advocates- Rachier Amollo Advocates LLP- and this explains why they could not continue representing him,” noted Justice Ngaah.

The judge faulted the registrar, saying before issuing the committal order she would have satisfied herself that he has means to settle the entire decretal amount or a substantial part but has refused or neglected to pay the same.

He said the registrar failed to consider conditions spelt out in Section 38 of the Civil Procedures Act which should be satisfied before issuing a committal order.

“The excerpts of the court record attest to this fact. Worse still, looking at those excerpts I am unable to reconcile the deputy registrar’s conclusion that the judgement debtor (Mr Gichuru) had not given any proposal of how he intended to settle the sum when it is apparent from her own record that the applicant had proposed to settle the debt within six months,” said the judge.

APPEAL

Mr Ngaah added that though the voter had already served a substantial period of the one-month prison term, a strong case has been made on his behalf for suspension of the committal order pending hearing and determination of the appeal.

The judge also allowed the voter to file an appeal against the legal costs after complaining that they exorbitant.

Justice Ngaah ordered Mr Gichuru to start the process of challenging the costs within 14 days since the decree was issued on June 8, 2018.

According to Regulation 11 of the Advocates Remuneration Order, the voter was supposed to challenge the costs within 14 days from when the order was made, but he failed to do so.

But the judge noted that neither Mr Gichuru nor his counsels were aware of the ruling on taxation as they had not been informed.

“My assessment of their conduct is that they chose to give a rather casual approach to the bill of costs and the petitioner was only jolted into action when he realised that the matter had spiralled to a level where he now faced a jail term,” said the judge.