, NAIROBI, Kenya, Jun 17 – The Interim Independent Electoral Commission (IIEC) has backed the Sh250,000 deposited in court before filing an election petition.
IIEC lawyer George Kithi said that the requirement has managed to control litigation and reduce case backlog, and argued that Parliament was up to reality when it imposed the security for costs.
He said: “My lords since the raising of the fee from Sh50,000 to Sh250,000 the number of election petitions, which could have otherwise been brought out of malice had reduced drastically.”
Mr Kithi told a two-judge bench that Mr Franco Esposito – who is seeking to declare the fee unfair and unconstitutional – was one of the richest men in Kenya and his economic status could not have been affected.
The security of costs is a mandatory requirement and is payable within three days after filing an election petition. According to Mr Kithi, the fee creates an equal playing field to the petitioner and the respondents.
The IIEC lawyer was making his submissions in the case where Mr Esposito has moved to the Constitutional Court to challenge the fee. Mr Esposito lost the Magarini parliamentary seat to East African Community Minister Amason Kingi. High Court judge Nicolas Ombija sitting in Malindi struck out his petition after he failed to deposit the money within the required time.
The Party of National Unity (PNU) aspirant, nicknamed Kasoso wa Baya by locals, pleaded with Justice Ombija to give him more time before he deposits the fee but the Judge struck out the petition as prayed by Mr Kingi’s lawyer.
On Wednesday, Mr Kithi told Judges Roselyn Wendoh and George Dulu in Nairobi that the mandatory provision does not in any way discriminate against Mr Esposito. While arguing that the fee existed even before Mr Esposito filed the suit, the counsel added that the petitioner attempted to make the deposit.
“He attempted to deposit the money and doing so, there was nothing unconstitutional about it. He in fact went back to the same court seeking an extension of time and was given a hearing within the law,” he said.
The lawyer said that if the petition goes through, it would be tantamount to overturning the decision of an election court or trying to supervise it yet the two courts (election and constitutional) are of the same jurisdiction.
In reply, Mr Esposito through his lawyer Cecil Miller insisted the fee was too high for the average Kenyan and should be declared unconstitutional.
He said a similar occurrence happened in Tanzania where the fee was raised from TSh500 to TSh5 million and which was declared unconstitutional by the High Court.
He said that if TSh5 million equivalent to TSh350,000 was too high, then Sh250,000 is equally high.
The judges will give their judgment on October 2.