KHCR, ICJ sue over order to pay Sh77 million in election suit costs
The Executive Director of International Commission of Jurists-Kenya George Kegoro. Photo/FILE
What you need to know:
ICJ-Kenya executive director George Kegoro says there was no private gain attributable to the applicants regardless of the outcome of the petition.
He added that the petition was filed to clarify the meaning of certain provisions of the Constitution, especially those dealing with leadership and integrity.
Both parties, among others, were challenging the eligibility of the president, his deputy and Mr Gesami to contest last year’s election.
Two civil society organisations have appealed a High Court order compelling them to pay the costs of a suit in which they had challenged the eligibility of the President and his deputy to contest last year’s General Election.
The Kenya Human Rights Commission (KHRC) and the International Commission of Jurists (ICJ) have moved to the Court of Appeal, arguing that their petition was filed in public interest and should not attract any award of costs.
The Independent Electoral and Boundaries Commission (IEBC) has already billed them Sh76.8 million.
KHCR and ICJ have enjoined President Uhuru Kenyatta, Deputy President William Ruto, IEBC, the attorney-general and West Mugirango MP James Gesami in the suit.
“There was no private gain attributable to the applicants regardless of the outcome of the petition. The courts, including the Supreme Court, have numerously stated that matters brought in public interest should generally not attract the award of costs,” said ICJ-Kenya executive director George Kegoro.
He added that the petition was filed to clarify the meaning of certain provisions of the Constitution, especially those dealing with leadership and integrity.
“There was no finding that the petition filed was frivolous, an abuse of the court process or incompetent. It (judgment) was unfair and unjust given the resources available to the applicants,” he said.
The contested judgment was delivered in February last year by a five-judge Bench consisting of Mbogoli Msagha, Luka Kimaru, Pauline Nyamweya, Hellen Omondi and George Kanyi Kimondo.
Despite highlighting that the High Court had no jurisdiction to determine the petition, the judges ruled that the petition lacked merit as some of the prayers sought were speculative and overtaken by events.
In their court papers, KHRC and ICJ claim that the High Court did not consider the fundamental issues raised while determining the case.
Public interest
They claim awarding costs against them would discourage people from filing public interest matters.
The two societies also claim that they had already filed a notice of appeal in regard to the judgment and are awaiting the typed record of proceedings.
“It would be in the best interest of justice that the intended appeal be heard and determined before costs, if any, are recovered against the applicants,” said Mr Kegoro.
Jurisdiction
Both parties believe that the intended appeal would raise issues relating to the High Court’s execution of jurisdiction and the manner in which it handled the petition.
In their failed petition, the applicants, including the International Centre for Conflict and Policy, Public Corruption and Ethics Governance, Charles Mwangi and Henry Nyangaya were ordered to bear the costs of the petition.
They were challenging the eligibility of the president, his deputy and Mr Gesami to contest last year’s election.
They cited the criminal charges facing Mr Kenyatta and Mr Ruto at the International Criminal Court, and Mr Gesami’s alleged transfer of Sh1 million from the Constituency Development fund to his personal account.
IEBC was also enjoined in the petition, with the applicants seeking to have the polls body reject the nomination of the three individuals in their political bids.
Their nominations had, however, already been accepted by IEBC by the time of the judgment, hence the court verdict that the petition had been overtaken by events.
