MALINDI politician Franco Esposito now wants the High Court to scrap the statutory Shs 250,000 pre-trial deposit imposed on aggrieved election petitioners. “The payment is meant to cushion election petition victors but it is extremely high for ordinary Kenyan voters and blatantly unconstitutional. It should be declared illegal and unlawful,” Esposito, who unsuccessfully vied for the Magarini parliamentary seat, implored Constitutional Court Judges Roselyne Wendell and George Oulu yesterday. Esposito, popularly known as Kasosowa Bays, protested that Section 21 of the National Assembly and Presidential Elections Act that provides for the mandatory payment by aggrieved election losers and voters was inconsistent with the Constitution and deserves to be quashed.
Lawyer Cecil Miller, who is representing the Kenyan-Italian entrepreneur in Coast Province, said Kenya should follow in the footsteps of Tanzania, which scrapped the Shs 350,000 fee demanded from election losers and aggrieved voters after lodging election petitions. The payment is kept by the High Court as security for costs incurred by those who win election petitions. Miller argued that the three-day ultimatum for petitioners to pay up after lodging their court papers was punitive and discriminatory and he is seeking a declaration that all Kenyan citizens are entitled to equal protection of the law. It was against public interest for Parliament to deny the High Court the power to extend the deadline under exceptional circumstances, he said.
Esposito vied for the parliamentary seat on a KENDA ticket and garnered 6.456 votes against East Africa Community (EAC) minister Jjeffa Amason Kingi, the Orange Democratic Movement (ODM) flag-bearer who bagged 6,600 votes. The tycoon is aggrieved by the decision made on April 124, last year by High Court Judge Nichol 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.
Miller charged that Esposito was an innocent victim of the legal sanctions since he was denied his constitutional right to natural justice and the due process of the law unconditionally guaranteed by Section 70 of the Constitution_ ‘A three-day period provided for under Section 21 of the Act within which Esposito was required to pay the security for costs is unfair and unequal treatment of one party as against the other and offends the equal protection law clause under Section 70 of the Constitution,” he submitted. Lawyer George Kithi, who is representing the Interim Independent Electoral Commission (IIEC) and returning officer Amine Kale, charged that Esposito had been let down by his Lawyers and did not deserve any remedy for non-compliance with the law.
There was no evidence that the businessman had suffered any prejudice or that his constitutional rights had been violated,”Every citizen is duty-bound to obey the Jaws of the land. This petition is brought in bad faith and seeks to resurrect through the back door the applicants election petition that was struck out for failure to adhere to the law. The three-day ultimatum creates sanity as against absurdity in election petitions,” he said.
