Over 330 petition case litter courts as costs keep women off

Martha Karua and her lawyer Gitobu Imanyara outside Kerugoya law courts. Karua is challenging the election of Anne Waiguru as Kirinyaga governor. Photo: courtesy
Martha Karua and her lawyer Gitobu Imanyara outside Kerugoya law courts. Karua is challenging the election of Anne Waiguru as Kirinyaga governor. Photo: courtesy

Other than the presidential result petition that was filed in the Supreme Court following the 2017 General Election, many more Kenyans have turned out   disputing poll results.

Those that have been filed in the High Court and magistrates’ courts currently stand at 338 being cases that oppose election of governors, senators, members of the National Assembly and members of the county assembly as well as those who query  party lists that have been presented for nomination at parliamentary and county level.

There are 34 gubernatorial cases, 15 senatorial, 12 women representatives, 98 MPs, 129 MCAs and 50 against party lists.

There are a number of women who petitioned in regards to election results but majority have kept off because of the high charges they are required to pay in court before their cases can be heard. Guided by the Elections Act, all cases for filed with the court registrar, to whom the payments are done.

Costs

However, there are also voters, both male and female who have filed cases against the winners as declared by Independent Electoral and Boundaries Commission (IEBC) following the August 8 General Election.

According to Farida Salim, an immediate former Member of Kisumu County Assembly who lost in the election, high court charges have been a deterring factor for many women especially considering that they just came from a gruelling campaign that absorbed most of their resources. While those opposing governor deposit KSh500,000 at the High Court. Those disputing election of MPs, women representative and MCAs pay KSh30,000. These could be viewed as fairly reasonable charges. However, it’s the lawyers’ charges that have left many women who felt cheated with the declared election results unable to file petitions. An opportunity to make a kill for lawyers, election petitions hardly attract pro-bono services.

Advocates’ guidelines

The High Court in Nairobi. Many cases have been taken to both the high court and magistrates courts where people are challenging election wins. Picture AWC Library

The High Court in Nairobi. Many cases have been taken to both the high court and magistrates courts where people are challenging election wins. Picture AWC Library

The Advocate Remuneration Act provides guidelines for legal fees, but as noted, this amount may vary depending on seniority, experience, reputation and capacity of the law firm. The Act provides that lawyers should not charge less than KSh500,00 for presenting or opposing an election petition. This amount of money is definitely out of reach for most women

“I wanted to file a case against my assumed loss but was deterred by the amount of money I was required to submit in the Magistrate’s Court as well as the legal fee that was being demanded by the lawyer,” explains Salim. She adds: “One lawyer told me he is taking nothing short of one million Kenya shillings.”

Looking at the 338 petitions, two women who vied for the gubernatorial positions in Kirinyaga and Machakos counties — Martha Karua and Wavinya Ndeti — have filed petitions opposing the election of Anne Waiguru and Dr Alfred Mutua respectively.

Urgent petition

Under a certificate of urgency at the Kerugoya High Court, Karua wants a three-judge bench to hear the petition against Waiguru.

In her petition, Karua notes that Waiguru was not validly elected as governor and her election should be declared null and void, calling on the High Court to apply the Supreme Court decision which nullified the presidential election results. She also wants the IEBC to be compelled to provide available electronic information on the gubernatorial poll.

On her side, Ndeti is challenging the election of Dr Alfred Mutua at the Machakos High Court. With a team of 10 lawyers, Ndeti claims the election was flawed and IEBC irregularly declared Mutua the winner, noting the win was preceded by massive irregularities.

Of the 15 senatorial petitions, there is no woman who has challenged the election of a single senator.

Male and female petitioners

The petitioners in the cases are not only losers but there are others who are voters. Challenges have been raised for both County women representative and single constituency MPs. In Kisii County, the election of Janet Ongera as Women Representative is being challenged by a male voter going by the name Nahashon Akunga. Another male voter, Jimale Mahmoud Abdullahi is challenging the election of Fatuma Ali Gedi as Garissa County Women Representative. In Kandara, a voter called Jane Mwaura is challenging the election of Alice Wahome as Kandara MP and is asking for a vote recount. In Kibwezi, Phillip Kaloki has filed a petition against Jessica Mbalu, demanding for fresh elections and asking that she be barred from contesting. In Kilifi County, Omar Juma Mwakole is challenging the election of Gertrude Mbeyu Mwanyanje while in Likoni Constituency Mwahima Mwalimu Masudi has filed a petition against Mishi Mboko as MP.

Mercy Achieng Mola and one individual have filed a petition against election of Raphael Wanjala as Budalangi MP.

Mary Emaase, immediate former MP Teso South has filed a petition challenging the election of Geoffrey Omuse as the area Member of National Assembly.

Even with these petitions, may an aggrieved woman remain in the backdrop as financial resources limit their ability to seek justice in a court of law. This is not only for women who lost in the elections but also those who have been discriminated on the party lists simply because of their gender and disability.