[2024] KEHC 11188 (KLR)

Michael v Orange Democratic Movement Party & 3 others (Election Petition E002 of 2022) [2024] KEHC 11188 (KLR) (Election Petitions) (26 September 2024) (Ruling)

Neutral citation: [2024] KEHC 11188 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Election Petitions

Election Petition E002 of 2022

LN Mugambi, J

September 26, 2024

Between

Njelekela Ashura Michael

Petitioner

and

Orange Democratic Movement Party

1st Respondent

Catherine Muma

2nd Respondent

Crystal Kegehi Asige

3rd Respondent

Independent Electoral and Boundaries Commission

4th Respondent

Ruling

1. The 3rd Respondent (Crystal Kegehi Asige) came to this court under Certificate of urgency dated 1st July, 2024 and Notice of Motion application of even date supported by the affidavit of Kevin Asige sworn on 1st July, 2024.

2. In the application, the applicant sought the following orders:i.Spentii.That the Deputy Registrar, Elections Registry, Milimani High Court remit the sum of Ksh.300,000/- from the Petitioner’s security for costs deposited with the aforesaid Deputy Registrar being costs awarded to the 3rd Respondent by the High Court and Court of Appeal respectively to the Bank Account of the 3rd Respondent’s Advocates on record.iii.That the costs of the application be provided for.iv.Any other order that meets the ends of Justice.

3. In the affidavit in support it was deposed that prior to filing the instant petition before the High Court, the petitioner deposited as security for payment of costs Ksh.500,000/- in accordance with Section 78 (2) of Elections Act and Rule 13 of Elections (Parliamentary and County Elections) Petition Rules, 2017.

4. The High Court in a ruling delivered on 20th December, 2022 – In Election petition E002 of 2022 dismissed the petition and awarded Ksh.100,000/- to the 3rd Respondent.

5. The petitioner appealed to the Court of Appeal in Election Petition Appeal No. E001 of 2023 and the Appeal was struck out on 12th May, 2023 wherein the 3rd respondent was awarded Ksh.200,000/- as further confirmed by Deputy Registrar of Court of Appeal in the order of 8th November, 2023.

6. That in total, the 3rd respondent is thus owed Ksh.300,000/- as combined costs in the two matters which ought to be recouped from the Ksh.500,000/- the petitioner had deposited in the High Court since nothing was deposited as security for costs in the Appeal.

7. In a brief replying affidavit of Njelekela Ashula Michael sworn on 8th July, 2024, (the petitioner/respondent in the instant application) he stated briefly as follows:“3. I have read the application of the 3rd Respondent dated 1st July, 2024 and annexed orders of Hon. Justice Mugambi of 3rd July, 2024. I wish not to oppose the said application save for orders for costs of the said application.”

“4. Further to the security for costs of Kshs. 300,000 being released to the 3rd Respondent’s Advocates on record, the Honorable Court be pleased to order the balance of the said costs be released to my Advocates on record.”

8. When the advocates appeared before me on 23rd September, 2024, Mr. Asige for 3rd respondent and Mr. Mokua for the petitioner; they were both in agreement as to payment of costs amounting to Ksh.300,000/- to the 3rd Respondent out of the sum that the petitioner had deposited in the High Court as security for costs.

9. Further, I equally perused the Court file and confirmed that on 20th December, 2022, the two advocates Mr. Asige and Mr. Mokua appeared before Justice A K Ndung’u whose record of proceedings in regard to the costs awarded to the 3rd Respondent in respect of the High Court matter went as follows: Asige: We seek court’s directions on costs.

Mokua: The matter has been determined at a preliminary stage. I pray that there be no order on costs. I pray for a certified copy of ruling and proceedings.

Court: I note that I have awarded costs in the matter. Costs are at the discretion of the court. Noting that the matter has been disposed off early at the preliminary stage and further that only the 3rd Respondent participated in the preliminary objection and notice of motion that were successful, I award costs for the 3rd respondent at Ksh.100,000/- all inclusive….”

10. In the ensuing appeal, the Court of Appeal rendered its decision in – Election Petition Appeal No. E001 of 2023Njelekela Ashura Michael. …………………………………..… PetitionerVersusOrange Democratic Movement Party. ………….... 1st RespondentCatherine Muma. ………………………………..……... 2nd RespondentCrystal Kegehi Asige. ……………………………….…. 3rd RespondentIndependent Electoral andBoundaries Commission. …………………………….…4th Respondent(Ali-Aroni, Mativo, Gachoka JJA)The Court appeal stated as follows on the issue of costs:“…The upshot of the above is that the appeal is hereby struck out with costs to the 3rd and 4th Respondent capped at Ksh.200,000/- for each respondent…”

11. Consequently, whereas in the High Court, only the 3rd Respondent was awarded Ksh.100,000/-; in the Court of Appeal, Costs of Ksh.200,000/- was awarded each to the 3rd and 4th Respondents respectively.

12. The upshot of the forgoing, therefore is that the 3rd Respondent is entitled to Ksh.300,000/- which ought to be defrayed from the amount of Ksh.500,000/- that was deposited by the Petitioner in the High Court as security for costs.

13. The request by the Petitioner to release the balance of Ksh.200,000/- to the Petitioner’s Advocate on record is incapable of being granted and is rejected considering that the 4th Respondent was also awarded Costs of Ksh.200,000/- by the Court of Appeal and there is no demonstration by the Petitioner that he has paid the 4th Respondent this amount of costs.

14. The orders that I make are thus as follows: -i.The Deputy Registrar, Elections Registry, Milimani High Court remit the Ksh.300,000/- from Petitioner’s Security for costs deposited in court being costs awarded to the 3rd Respondent by the High Court and Court of Appeal respectively to the Bank Account of the 3rd Respondent Advocate on record.ii.The request by Petitioner for the release of the balance of Kshs.200,000/- of the amount he deposited as security for costs to be released to his Advocate on record is rejected as there is no proof that he paid Kshs. 200,000 which the Court of Appeal similarly awarded to the 4th Respondent as costs.iii.Each Party to bear its own costs of this application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. L N MUGAMBIJUDGE