[2022] KEHC 16029 (KLR)

Thoya & 2 others v Independent Electoral and Boundaries Commission & 2 others; Fondo & another (Interested Parties) (Election Petition E004 of 2022) [2022] KEHC 16029 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16029 (KLR)

Republic of Kenya

In the High Court at Malindi

Election Petition E004 of 2022

FN Muchemi, J

December 1, 2022

In The Matter Of: Articles 1, 10, 38, 81, 86 & 88 Of The Constitution Of Kenya 2010 And In The Matter Of: The Election Act, 2011 (Act No. 24 Of 2011, The Election (General Regulations, 2012), L.N No. 128 Of 2012 And The Elections (Parlamentary And County Petition Rules, 2017) And In The Matter Of: The Election Offences Act, 2016 (Act No. 37 Of 2016) And In The Matter Of: The National Assembly Elections For Kilifi County Women Representative Held On 9Th August 2022

Between

Emmanuel Maitha Thoya

1st Petitioner

Wilson Baya Kalulu

2nd Petitioner

Mwanaisha Kadzo Kahindi

3rd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Hussein Gurre (Kilifi County Returning Officer)

2nd Respondent

Mwanyanje Gatrude Mbeyu

3rd Respondent

and

Christine Zawadi Gona Fondo

Interested Party

Baya Juliet Riziki

Interested Party

Ruling

1. The petitioners filed this Election Petition on 09/9/2022 and duly served the respondents. The 1st and 2nd respondents filed their respective responses on 2nd September 2022 through their advocates Ngetich, Chiira and Co. The 3rd respondent entered appearance on 20/09/2022 through its advocates Bamomin & Associates. On 4th October 2022, the 3rd respondent filed its grounds of opposition dated the same day.

2. An application to withdraw the petition dated 12th October 2022 was filed by the petitioner who obtained leave to withdraw. The withdrawal notice was gazetted on 2nd November 2022.

3. Following the court granting orders for withdrawal, the respondents applied for costs of the petition. The parties failed to agree on costs and the court directed that the parties do file their respective submissions.

4. The 1st and 2nd respondents filed their submissions on 29th November 2022 whereas the petitioners filed theirs on 30th November 2022.

The Petitioners’ Submissions 5. The petitioners rely on Section 85 of the Elections Act and Rules 30 – 33 of the Elections (Parliamentary and County Elections) Petitions Rules of 2017 and submit that although the respondents are entitled to costs the court ought to consider that the petitioners were unable to raise the security amount as stipulated in law. The petitioners submit that this in an indication that they are facing financial challenges and in the event costs are granted, the petitioners state that they will not be in a position to settle the same. The court was urged to consider that save for the application for withdrawal of the petition, the main petition has never proceeded for hearing nor have pre-trial directions been given. Additionally, although the respondents filed their responses, the petitioners contend that the paperwork was limited and that it is only fair and just that reasonable costs be awarded because the present petition which is for County Women Representative, the research work and paperwork is not as tedious as that of a presidential election.

6. The petitioners rely on the cases of Sammy Ndungu Waity & Another vs Independent Electoral Boundaries Commission & 3 Others [2017] eKLR and Ombati Richard vs Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR in which the court awarded the respondents Kshs. 500,000/- in both cases, as costs and ask the court to be guided by the cases and award the respondents a minimal figure commensurate to the work done.

The 1st and 2nd Respondents 7. The 1st and 2nd respondents rely on Section 84 of the Elections Act and Rule 30(1) of the Elections (Parliamentary and County Elections) Petitions Rules 2017 and submits that they have incurred considerable expenses in putting together a defence to the petition as evidenced by the hefty bundle of response dated 22nd September 2022 and documents. The respondents further submit that as the petition alleged malpractices throughout the entire county of Kilifi. The counsel traversed the entire county and organized meeting with all the constituency returning officers in the seven sub counties being Kilifi North, Kilifi South, Ganze, Malindi, Magarini, Rabai and Kaloleni and further that their counsel had meetings with the presiding officers whose polling stations were adversely mentioned in the petition.

8. The respondents further submit that counsel has been travelling all the way from Nairobi to Malindi to attend the petition save for the last two court attendances, which have taken place remotely.

9. The respondents rely on the cases ofAbdisalan Mohamed vs Independent Electoral & Boundaries Commission [2013] eKLR and Samuel Kambi Kazungu vs Chea Gunga Mwinga & Another[2013] eKLR and ask the court to award them costs of Kshs. 1,500,000/-.

The 3rd Respondent’s Submissions 10. The 3rd respondent submitted that he instructed his advocates to come on record on 20th September 2022 and upon perusing the petition, filed a memorandum of appearance on the same date. On 3rd October 2022, he filed a response to the petition.

11. The 3rd respondent further submitted that before the petition could be fixed for hearing, the petitioner filed an application for withdrawal on 12th October 2022. The 3rd respondent states that although the petition did not proceed to hearing, their counsel attended court severally for mentions on the withdrawal. He further submits that pursuant to the Remuneration (Amendment) Order 2014, he is entitled to a fee of not less than Kshs. 500,000/-. Thus he draws his fee at the minimum of Kshs. 500,000/- together with court attendance fees of Kshs. 4,000/- and court filing fees of Kshs. 850/-. The 3rd respondent further prays for perusal fees at Kshs. 14,025/- drawing fees at Kshs. 1,000/- and process server fees at Kshs. 6,000/-. His total sum comes to Kshs. 526,475/- and he prays that the court allows his prayer.

The Law 12. Schedule VI of the Advocates Remuneration (Amendment) Order 2014 provides that to prevent or to oppose an election petition, such sum as may be reasonable but not less than Kshs. 500,000/-. The issue of costs was discussed in the case of Cosmas Fuleni Kenga vs IEBC & 3 Others, Malindi Election Petition No. 12 of 2017 where Chepkwony J. allowed a petitioner to withdraw from the petition but condemned him to pay costs to the respondents. The court shared out the amount of Kshs. 500,000/- which was deposited as security.

13. Similarly in the case of Sammy Ndungu Waity & Dennis Kimgaror Leman vs IEBC & 3 others, Nanyuki Election Petition No. 2 of 2017 cited in the case of Ukur Yattani Kanacho vs IEBC & 4 Others[2018] eKLR the court shared out the security to the four respondents at the rate of Kshs. 125,000/- each.

14. In this petition, the petitioner did not deposit the Kshs.500,000/= as required by the law. Nevertheless, the respondents are entitled to costs. The 1st and 2nd respondents put in a twenty-one page response with a host of documents and it goes without saying that quite some work was put in preparation and filing of the said response. It is noted that the two respondents were represented by one firm of advocates and their response was a joint one.

15. As for the 3rd respondent, he filed a very short response of 4 paragraphs worded more like grounds opposition. It is noted that no document was attached to the response and such, less industry was put in herein

16. At this juncture, I wish to state that in awarding costs, the court is not bound by the financial ability or otherwise of the petitioner but ought to grant costs that are commensurate to the industry of each party. This court takes into consideration that this petition was withdrawn at a very early stage before directions on the hearing were taken and that the parties have appeared before this court four (4) times on very short mention sessions. The application to withdraw was not opposed and as such, it took very little time for the orders to be granted.

17. Having considered all the above factors, I hereby award costs to the respondents payable by the petitioner as follows:-a.1st and 2nd respondents – Kshs.350,000/=b.3rd Respondent –Kshs.150,000/=

18. The Deputy Registrar Malindi is hereby directed to deal with any issues arising herein on execution of the orders for costs.

19. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 1ST DAY OF DECEMBER, 2022. F. MUCHEMIJUDGERuling delivered through video link this 1st day of December, 2022