, NAIROBI, Kenya, Sep 9 – The High Court has declined to suspend an order directing activist Ndung’u Wainaina and five lobby groups from paying Sh170 million as costs of a suit involving President Uhuru Kenyatta and his deputy.
The petitioners were ordered to bear the costs after the High Court in December 2012 threw out a case seeking to stop President Uhuru Kenyatta and his deputy William Ruto from contesting last year’s election due to the International Criminal Court trials they are facing.
The Independent Electoral and Boundaries Commission was also a party to the suit.
Judge George Odunga refused to issue an order restraining President Kenyatta, Ruto and the IEBC through their lawyers from taxing their bill of costs or taking any other steps pending hearing and determination of the applicants’ appeal.
Wainaina, the director of the International Centre for Policy and Conflict (ICPC) wanted the court to issue the order on grounds that the appeal has a prima facie case with probability of success.
In the appeal set to be heard from October 22, the applicants are contesting the decision by a five-judge bench directing ICPC, Public Corruption Ethics and Governance, Kenya Human Rights Commission, International Commission of Jurists, Charles Ndung’u Mwangi and Henry Nyakundi to bear costs of the suit.
On Tuesday, Justice Odunga ruled that the court was not satisfied the matter was urgent enough to be heard during the vacation. “Consequently I decline to issue the orders sought ex-parte.”
The taxation process is set to commence on Wednesday before the Deputy Registrar of the High Court at the Milimani Law Courts.
The lobby groups want the Court of Appeal to reverse the High Court’s directive arguing that it was unjust given the financial resources available to them since they are non-profit organisations that rely on public and institutional funding to do their work.
“If the court were to allow for the execution of the cost award the applicants would suffer irreparable harm because they do not have the requisite funds to pay for the costs hence threatening their existence,” argued lawyer Suyianka Lempaa.
The applicants contend they are civil society organisations and are lawfully engaged in the protection, promotion and implementation of the Constitution including the rule of law, human rights and democratic culture in Kenya.
They insist the petition was filed in public interest and for the purpose of ensuring that the principles of integrity that were central to the clamour of the new Constitution were observed for both elected and appointive positions.
The petitioners say they honestly believed that President Kenyatta, and Ruto were precluded by the Constitution from seeking or holding public office.
“There was no private gain attributable to the applicants regardless of the outcome of the petition,” lawyer Lempaa argued.