Court cases crippling IEBC

By ALEX NDEGWA

The Judiciary is in danger of crippling the Independent Electoral and Boundaries Commission ahead of the upcoming General Election.

This is the warning from electoral officials who want the Chief Justice to intervene over the "exorbitant amounts" awarded in legal costs against the polls body.

IEBC bosses say the burden of court awards in election petitions from the 2007 General Election has punched a huge hole in their finances. Hundreds of millions of shillings have been handed out in unexplained legal costs. Chairman Ahmed Isaack Hassan has written to CJ Willy Mutunga on the matter.

IEBC Chairman Isaack Hassan with commissioners Mohammed Hussun and Lilian Bokeeye at a past function. [PICTURE: FILE/STANDARD]

Judges, acting as ‘taxing officers’, have the power to determine what costs, if any, a successful party is entitled to after a lawsuit has finished. The poll body is usually required to meet the cost of hiring lawyers for all successful election petitioners. Due to the high level of irregularities in the 2007 elections overseen by the now disbanded Electoral Commission of Kenya, IEBC and its interim predecessor, the IIEC, have lost more than a dozen petitions.

The IEBC is concerned that while legal costs awarded in previous petitions averaged Sh3 million, following the 2007 poll the amounts have sky-rocketed. 
In a letter to the CJ dated February 14 this year, Isaack notes that IEBC has been asked to pay Sh213.5 million in legal costs in just three petitions, without justification by the courts. The letter turns the spotlight on lawyers and the Judiciary over the enormous legal bills. The IEBC chairman warns that the trend could disrupt the commission’s budget.
"The commission is a public institution that gets funds from the Exchequer," Isaack writes in the letter to the CJ. "Should this trend continue, it will cripple the IEBC in carrying out electoral activities, including the upcoming General Election. It is for this reason that we seek your urgent intervention."

The elections chief observes that attempts to object to the large amounts being awarded by courts have not been successful. These include a petition to Justice Mutunga’s predecessor, Evans Gicheru.
"The courts have continued to award high costs even after the commission sought intervention from the then Chief Justice," Issack adds. He cites William Kabogo Gitau-vs-George Thuo & Two Others, the case in which Kabogo successfully petitioned against the election of George Thuo as Juja MP. IEBC is expected to pay a total of Sh86.6 million to Kabogo’s legal team.

Filed in 2008, Kabogo’s case was concluded on November 4, 2010. Party and party costs were put at Sh28, 851, 539. Similar amounts were allowed against the IEBC’s predecessor, which was the second respondent, and the Returning Officer, the third respondent, pushing the total award to Sh86, 554, 617. Kabogo recaptured the seat in a subsequent by election.

In another petition in which Ayub Mwekesi challenged the election of Chirau Mwakwere as Matuga MP, the courts on March 23, last year directed the commission pays a total of Sh57.3 million. The figure includes Sh24, 347, 725 in petitioners bill of costs plus tax. In addition, the bills for the first and second respondents (the Returning Officer and the ECK) were taxed at Sh4, 632, 188 and Sh28, 406, 309.
Another election suit cited in Issack’s letter is Dickson Daniel Karaba-vs-John Ngata Kariuki and Two Others, in which the commission is to pay Sh69.7 million. On February 3, this year, the courts awarded the petitioner a party and party bill of costs of Sh69, 732, 680.

Isaack terms as of "grave concern" that upon finalisation of the cases, judicial officers have developed a tendency to award "exorbitant costs" in their capacity as Tax Officers. In most cases, he explained, the overall cost of litigation has been informed by an award of costs by the courts to both petitioner and respondent.

"These exorbitant costs are a departure from the previous costs taxed at an average of approximately Sh3 million, thus creating a bad precedent, with lawyers increasingly making reference to the William Kabogo Vs George Thuo case," he adds. Isaack has questioned how the courts arrive at the hefty awards and urged the CJ to rein in judicial officers who uphold exorbitant fee notes.

"There have not been any explanations given by the courts on how they arrive at these high amounts," he writes. "We wish to maintain that it is expected of the courts to observe due diligence in assessment of each individual case and award costs in a more objective manner and curb the tendency by advocates to raise exorbitant fee notes."