The ruling United Democratic Alliance (UDA) party has secured a relief in its fight with the Orange Democratic Movement (ODM) and five other political parties over the payment of Sh30 million in the form of legal fees.
This is after the High Court halted assessment of the fees payable to the advocates until the Court of Appeal delivers its verdict on an appeal filed by UDA challenging the decision to burden it with the legal costs.
The dispute involves financial expenses incurred two years ago in a court case concerning the distribution of the Political Parties Fund, where UDA was alleging underfunding.
The costs accrued in May 2023 after the High Court dismissed UDA’s claims that part of its share of the Fund had been allocated to other parties such as ODM, Jubilee, Maendeleo Democratic Party, Chama cha Uzalendo, Progressive Party of Kenya, and Devolution Empowerment Party. The case was dismissed with costs on May 11, 2023.
However, ODM’s bid for assessment of the advocates’ fees has suffered a setback after the High Court halted the exercise following a request by UDA.
Judge Anthony Mrima froze the taxation process pending the Court of Appeal’s verdict on an appeal filed by UDA against the High Court decision to slap it with the costs of the case.
The appeal also concerns the High Court decision to deny UDA an extra allocation of Sh115 million on top of Sh577 million allocated by the registrar of political parties in the financial year ending June 2023.
Pleading with the court to halt assessment of the fees, President William Ruto’s UDA argued that enforcement of the court’s judgment through the scheduled taxation would greatly undermine the proceedings before the Court of Appeal.
UDA said the stay orders were warranted since ODM was in the process of executing the costs, having sought the assessment of its bill, a process that UDA said would defeat the substance of the pending appeal.
It added that the intended assessment was premature since costs should await the outcome of the appeal.
ODM had opposed the application. It wanted UDA compelled to deposit Sh15 million, half of the bill of costs, into a joint interest-earning bank account to be held by the counsels of both parties, as a condition for halting the execution.
The Raila Odinga-led party told the judge that since the bill was yet to be taxed, there was no imminent threat of execution.
Its position was that it was in the interests of justice that the taxation proceedings should go on unhindered, as it was not known when the appeal would be determined.
Their lawyer further claimed that, should the appeal succeed after taxation and execution, such costs could always be recovered or repaid by the ODM party.
However, Justice Mrima said halting the exercise was good to facilitate an expeditious determination of the disputes.
And once a determination on the appeal is made, the taxation would proceed from the stage it had reached, subject to any directions or further orders of the appellate court at the conclusion of the appeal.
“It is incumbent upon this court to take the position that aligns with the prudent use of an otherwise scarce judicial time,” said Justice Mrima.
In the original case, which was dismissed with costs by Justice Aleem Visram, UDA argued that the Registrar of Political Parties miscalculated the total number of votes garnered by the qualifying parties in the 2022 general elections in the election of the President, Member of Parliament, County Governors and Member of County Assemblies.
UDA argued that the Registrar acted unlawfully by arbitrarily allocating the funds, without deferring to provisions of the Political Parties Act, thereby conferring irregular advantage to some political parties at the expense of others.
The case started at the Political Parties Disputes Tribunal, which also rejected UDA’s claim.
UDA was aggrieved that the registrar failed to include votes from Kericho County Woman Representative and Member of the County Assembly Ravine Ward, Baringo County, who were declared winners unopposed.
It argued that it was duly entitled to all the votes as per the published voters register in relation to Kericho County Woman Representative and Ravine MCA, having won the two elective positions without a contest.
However, Justice Visram dismissed the claim that UDA was entitled to more funding based on the unchallenged election of its two candidates. The judge said he was not persuaded by the logic of UDA in that case.
“To apply such a proposition, where the total number of registered voters is equated with votes cast for a particular candidate (elected unopposed) leaves out far too many variables which are innate to the electoral process. For instance, I cannot help but wonder, what about the registered voters who may simply not show up on the day of the election; what about votes that are ‘spoilt’; and there may be many other reasons why this logic may not be fairly applied,” said the judge.
