HE requirement that election losers must deposit Shs 250,000 as security for costs three days after lodging petitions offends public policy and national interest, veteran lawyer Cecil Miller told the High Court yesterday.
The punitive sanctions locked out the majority of genuine election losers from challenging poll outcomes and unfairly denied courts of law the opportunity to intervene in election disputes, Miller told Constitutional Court Judges Roselync Wendoh and George Dulu. Miller, who is representing flamboyant Malindi politician and Magarini parliamentary election loser Franco Esposito, is seeking a declaration that all Kenyan citizens are entitled to equal protection of the law and that the requirement for security of costs is inconsistent with the supreme law of the land. Esposito vied for the parliamentary seat on a KENDA ticket and garnered 6,456 votes against East Africa Community (EAC) minister Jeffs Amason Kingi, the Orange Democratic Movement (ODM) flag bearer who bagged 6,600 votes.
Esposito is aggrieved by the decision made on April 24, last year by High Court Judge Nicholas Onsbija dismissing his application for an extension of time to present the deposit. He claims his lawyers were denied the opportunity to make the payment by the Malindi High Court registry staff on the basis they were time-barred. “The restriction placed by Section 21 of the National Assembly and Presidential Elections Act is unreasonable and discriminatory against Esposito since it creates an unequal playing field between him, who for whatever reason was unable to pay the security for costs, and those of a respondent, who is not required to pay a similar deposit for security of costs within the same period,” Miller argued.
