Why election petition is an expensive endeavour

As election petitions wind up across the country, the amount of millions being awarded to the winners is what has captured the public’s attention.

But beyond the court-declared costs, litigants and their legal teams have to bear great financial and logistical burdens, which hardly get mentioned.

From logistics to time spent away from one’s usual working station, lawyers talked of huge sacrifices that the parties and their lawyers have to make.

“Filing a petition is an expensive affair and many things are involved that when put together cannot compare to what the court awards the successful parties,” lawyer Charles Kanjama, who represented Oyugi Magwanga as he challenged the re-election of Homa Bay Governor Cyprian Awiti, says.

Mr Kanjama said the costs can be categorised into three: disbursement costs (which consist of transport, accommodation, printing and photocopying as well as catering for the support teams).

“Even if I am the one talking in court there are several other people who have been working on the background like researchers who have to be compensated,” Mr Kanjama says.

TRAVEL COST
The other category of costs is the time, especially since the advocate has to be away from his usual work station for days.

“You are incurring professional costs because you will not be attending to other office matters while you are away to deal with the petitions. This too has to be compensated,” he said.

Former Law Society of Kenya (LSK) chief executive Apollo Mboya says time spent preparing for the petitions, the distance covered to travel to the court’s area of jurisdiction, complexity of the matters, are among other factors that would affect the costs demanded.

“Sometimes the costs awarded by the court may seem high but may not actually cover what the petitioner, or the defence, had put in to either argue or defend the petition,” lawyer Cecil Miller argues.

Lawyer Peter Wanyama, who successfully represented Trans Nzoia Governor Patrick Khaemba, says disbursements account for a substantial portion of the costs.

“In the Trans Nzoia case the judge capped the instructional fees to Sh5 million for my client and a similar amount for the Independent Electoral and Boundaries Commission (IEBC).

"What that means is that when I am preparing the certificate of taxation of Sh5 million I put all these additional costs, which include travel charges, fees when I was in court, even the scrutiny that we undertook for nearly two weeks as well as incidental costs such as photocopying,” he says.

“Ultimately if we lodge the costs that accrued to the successful party we are looking at something in the region of Sh7.5 million for the governor alone and a similar amount for IEBC,” Mr Wanyama adds.

ACCOMMODATION
With parties going for 'famous' lawyers mostly based in Nairobi, the additional cost of transporting and accommodating the advocates and their assistants for the duration of the hearing adds to the headache.

For instance, in Homa Bay both parties went for Nairobi-based lawyers.

While Mr Kanjama led Mr Magwanga’s team of four lawyers, his rival was represented by Prof Tom Ojienda, Antony Oluoch and three other lawyers, most of them based in Nairobi.

During the hearing of the case, the lawyers flew to the county through the Kabunde Airstrip in the outskirts of Homa Bay Town.

A one way flight from Nairobi to Homa Bay Town goes for Sh10,000 while one night accommodation at a Homa Bay hotel where the lawyers stayed starts from Sh5,500.

KENYA AIRWAYS
It was the same case in Embu where city lawyer Ahmednasir Abdullahi was on the losing side having acted for Governor Martin Wambora.

The petitioner, Lenny Kivuti, was represented by Prof Ojienda.

In Trans Nzoia, Mr Wanyama, who is based in Nairobi, was representing Governor Khaemba.

In the petition against Ugenya MP Chris Karan, the petitioner David Ochieng’ has assembled a team that includes Richard Kwach, Roger Sagana and Daniel Achach, both based in Nairobi.

Often, they arrive a day early and are accommodated at top hotels.

Meanwhile, flying economy class from Nairobi to Kisumu on Kenya Airways costs between Sh6,300 and Sh12,000 one way.

The parties also bear the cost of bringing their witnesses to the court and back.

LEGAL FEES
In other instances, additional costs for transport and accommodation arise where the petition is being heard at a place other than the constituency or the county where the contestants reside.

Such was the case in the petition against Wajir Governor Mohamed Abdi, which was heard in Nairobi, Ugenya constituency petition (which is being heard in Kisumu) and the one that was challenging Kwale Governor Salim Mvurya (which was heard in Mombasa).

Mr Wanyama says that the costs awarded to the successful parties is nothing compared to what the advocates are paid.

“These costs are not legal costs. These are costs that accrue to the parties. The legal fees is charged separately,” he said.

He said the fee that is paid to the advocate is much higher and one can even charge Sh30 million.

According to him, it is just a psychological win for the successful parties.

PUNITIVE
It gets worse for the unsuccessful parties, who besides paying the costs as set by the court and suffering the mental pain of losing, have to pay the advocate’s fees and other costs like travel and other logistics. 

Apart from the costs one has to bear when one loses, there are also others that are paid at the point of filing a petition or responding to the same.

Lawyer Boniface Masinde says the even though the costs awarded have largely been viewed as punitive, it should also be appreciated that the courts cannot award costs similar to those which were awarded after the 2013 General Election.

“What is important is that the costs of petitions dismissed is almost the same as the cost of petitions allowed.

"Also, the petition will ordinarily attract higher costs if it has gone to full hearing and less if it was dismissed on technicality without going to full trial,” lawyer Masinde says.