Three Appellate Court Judges have voiced their concern over high costs slapped on election petition losers by the High Court.
The Court of Appeal termed the costs as “inordinate”.
Judges Mohamed Warsame, Daniel Musinga and Otieno Odek-all are Appellate Judges-said the courts are going back to the old days when they imposed very heavy fines on election petition losers.
They questioned why the High Court dismissed the election petitions with exorbitant 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 last Friday according to Daily Nation.
The three judges said the High Court should have borrowed from the relatively low costs awarded by the courts in 2013 petitions.
Justice Warsame said such high costs are an impediment towards accessing Justice as enshrined under Article 48 of the Constitution of access to justice.
“It is up to the election court to determine whether a party would be awarded costs or not and in doing so, the court must be guided by the principles of fairness, justice and access to justice,” they said.
“In our understanding, the capping of costs provided under Rule 30 of the Petition Rules, 2017 was to ensure that parties approach courts without fear of being subjected to excessive costs… High costs are an impediment to the right of access to justice, and are not meant to be punitive.”
They added that election petitioners should not be punished for seeking their right for justice.
“It is meant to compensate a successful litigant. It is not a punishment or a deterrent measure to scare away litigants from the doors of justice.”
The highest cost awarded in the election petitions from the August 8 polls is Sh12 million.
Justice Mary Kasango upheld the election of Laikipia Governor Nderitu Muriithi and ordered the petitioner, Ndungu to pay Sh12 million in costs.
In yet another petition dismissed with Sh12 million costs, Justice Kiarie Waweru upheld the election of Busia Governor Sospeter Ojamong and ordered the petitioner, Odima from Nambale to foot the cost.
Several other cases were dismissed at a cost of Sh10 million. They are Anne Waiguru vs Martha Karua (Kirinyaga) and Alfred Mutua vs Wavinya Ndeti (Machakos).