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CASE NO.

BETWEEN:

Case Number: | Election Petition 1 of 2013 |
---|---|

Date Delivered: | 28 Aug 2013 |

Case Class: | Civil |

Court: | Election Petition in Magistrate Courts |

Case Action: | Ruling |

Judge: | D.K.KemeiI - SPM |

Citation: | Michael Odoyo Nyakwaka v Boaz Owiti Okoth & 2 others [2013] eKLR |

Advocates: | none |

Case Subject: | - |

__REPUBLIC OF KENYA__

**IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MIGORI**

__ELECTION PETITION NUMBER 1 OF 2013__

MICHAEL ODOYO NYAKWAKA................................................................PETITIONER

**VERSUS**

BOAZ OWITI OKOTH.........................................................................1ST RESPONDENT

RETURNING OFFICER NYATIKE CONSTITUENCY.........2ND RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.........................................................3RD RESPONDENT

__RULING:__

Counsels for the Respondents herein have presented their costs for assessment following the withrawal of the Petition and subsequent ruling thereon.

The 1st Respondents bill is dated 13/8/13 while that of the 2nd and 3rd Respondents is dated 14/8/13. I have considered the said party and party bills as well as the provivisions of the Advocates Remuneration order. I have also perused the Court record as from 29/4/13 to 14/8/13. Since there are two bill 1st Respondent. I note that there was no reply from the part of the pettioner and even though Counsels for the Respondents urged me to have the bills assessed as drawn, I shall not take that but proceed to assess each of the items. On item No.1 I am of the consiered view that a sum of 300 000/- would be reasonable in the circumstances bearing in mind that election petitions are weighty matters and that the Advocates remuneration order provides for a fee of Shs. 3 million in defending such type of cases.

Moreover matter dully proceeded to full hearing and submissions filed only awaiting Judgement before petitioner withdrew the sum of 15000/- to be reasonable them No.3 item No.4 is found drawn to scale. On item No.5 a sum of 10000/- is found reasonable to cater for travelling costs from Kisumu to Migori. Item No.6 a sum of 1500/- is awarded to cater for travelling costs from Kisumu to Migori. Item No.8 a sum of 1500/- is awarded to cater for attndfance item No.9 a sum of 10,000/- is found to be reasonable to cater for travelling costs. Item No. 10 a sum of 11,500/- is awarded for attendance. Items 11 for attendance to take direction a sum of 11,500/- is found reasonable to cater for both attendance and travel to Court on 30/5/13. Item 12 and 13 a total sum of 11500/- is found reasonable for attendance and travel and it was the date when case proceeded to hearing. On item 14 and 15 the sum of 10,000/- is warded for travel to Court on 25/6/13. Items 16 and 17 a total sum of 11500/- is awarded for attendance and travel, item 18 and 19 a sum of 11,500/- is found reasonable for attendance and travel. Item 20 and 21 a sum of 11500/- is awarded for attendance and travel. Items 22 and 23 a sum of 11500/- is awarded for attendance and travel. Items 24 and 25 are not awarded as the record does not show any attendances.

On disbursements I find all th items except item No.26(b) drawn to scale. I award 75 shillings on item 26(b), thus total disbursements on items 26 to 33 comes to a sum of 8055 shillings. Hence the gross total comes to a sum of 452555/- which agains atracts 16% VAT of 72408/80 thereby giving a net sum of Ksh.524,963/80 being the assessed costs for the 1st Respondent.

As regards the 2nd and 3rd respondents, I find they were represented jointly by one Counsel and bill presented was to cater for both respondents. On item 1 and 2 I find a sum of Kshs.250,000/- to be reasonable since Counsels participated in the trial although no witness was called for the 2nd and 3rd respondents. Item No. 3 a sum of Kshs.1000/- for service is reasonable. And similarly item No 4, item No 5 is found drawn to scale. Item No.6 a sum of Kshs.1,500/- is awarded.

Item No. 7 a sum of Kshs.4,000/- is found reasonable for service in Nairobi. Item No.8 a sum of Kshs.1000/- reasonable for service in Kisumu since both respondents Advocates are based in Kisumu. Item No.9 a sum of Kshs.1000/- is awarded and similarly for item No.10. Item No.11 a sum of Kshs.1,500/- is awarded. Item No.12 a sum of Kshs.1,000/- is awarded and similarly item 13. Item 14 a sum of Kshs.4000/- is awarded for service in Nairobi. Item 15 a sum of Kshs.1000/- is awarded, Item No.16 a sum of Kshs.4000/- is awarded. Item No. 17 a sum of Kshs.1,500/- is awarded and similarly item No.18. Item No.19 a sum of Kshs.1000/- is awarded and likewise item No.20.

On disbursements, Items Nos.22,23,24,25,27 are found drawn to scale but item No.26 a sum of Kshs.75/- is allowed while item No. 28 a total of Kshs.35,000/-is found reasonable to cater for travel expenses on at least five Court appearances. All these add up to a sum of Kshs.313,575/- which again attracts 16% VAT of Kshs.50,172/- thereby coming to a net sum of Kshs.363,747/- as assessed costs for both second and 3rd respondents.

Finally the sum of Kshs.100,000/- deposited by the petitioner herein shall be applied in the first instance towards settlement of the abovestated assessed costs.

**Dated and delivered at Migori this 28th day of August 2013.**

**D.K. KEMEI**

**SPM.**

**In the presence of**

......................................................... for Petitioner

..........................................................for 1st respondent

.................................................... for 2nd and 3rd Respondent

...................................................... Court Clerk

**..................................................................................**

**SENIOR PRINCIPAL MAGISTRATE**

__REPUBLIC OF KENYA__

**IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MIGORI**

__ELECTION PETITION NUMBER 1 OF 2013__

MICHAEL ODOYO NYAKWAKA................................................................PETITIONER

**VERSUS**

BOAZ OWITI OKOTH.........................................................................1ST RESPONDENT

RETURNING OFFICER NYATIKE CONSTITUENCY.........2ND RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.........................................................3RD RESPONDENT

__RULING:__

Counsels for the Respondents herein have presented their costs for assessment following the withrawal of the Petition and subsequent ruling thereon.

The 1st Respondents bill is dated 13/8/13 while that of the 2nd and 3rd Respondents is dated 14/8/13. I have considered the said party and party bills as well as the provivisions of the Advocates Remuneration order. I have also perused the Court record as from 29/4/13 to 14/8/13. Since there are two bill 1st Respondent. I note that there was no reply from the part of the pettioner and even though Counsels for the Respondents urged me to have the bills assessed as drawn, I shall not take that but proceed to assess each of the items. On item No.1 I am of the consiered view that a sum of 300 000/- would be reasonable in the circumstances bearing in mind that election petitions are weighty matters and that the Advocates remuneration order provides for a fee of Shs. 3 million in defending such type of cases.

Moreover matter dully proceeded to full hearing and submissions filed only awaiting Judgement before petitioner withdrew the sum of 15000/- to be reasonable them No.3 item No.4 is found drawn to scale. On item No.5 a sum of 10000/- is found reasonable to cater for travelling costs from Kisumu to Migori. Item No.6 a sum of 1500/- is awarded to cater for travelling costs from Kisumu to Migori. Item No.8 a sum of 1500/- is awarded to cater for attndfance item No.9 a sum of 10,000/- is found to be reasonable to cater for travelling costs. Item No. 10 a sum of 11,500/- is awarded for attendance. Items 11 for attendance to take direction a sum of 11,500/- is found reasonable to cater for both attendance and travel to Court on 30/5/13. Item 12 and 13 a total sum of 11500/- is found reasonable for attendance and travel and it was the date when case proceeded to hearing. On item 14 and 15 the sum of 10,000/- is warded for travel to Court on 25/6/13. Items 16 and 17 a total sum of 11500/- is awarded for attendance and travel, item 18 and 19 a sum of 11,500/- is found reasonable for attendance and travel. Item 20 and 21 a sum of 11500/- is awarded for attendance and travel. Items 22 and 23 a sum of 11500/- is awarded for attendance and travel. Items 24 and 25 are not awarded as the record does not show any attendances.

On disbursements I find all th items except item No.26(b) drawn to scale. I award 75 shillings on item 26(b), thus total disbursements on items 26 to 33 comes to a sum of 8055 shillings. Hence the gross total comes to a sum of 452555/- which agains atracts 16% VAT of 72408/80 thereby giving a net sum of Ksh.524,963/80 being the assessed costs for the 1st Respondent.

As regards the 2nd and 3rd respondents, I find they were represented jointly by one Counsel and bill presented was to cater for both respondents. On item 1 and 2 I find a sum of Kshs.250,000/- to be reasonable since Counsels participated in the trial although no witness was called for the 2nd and 3rd respondents. Item No. 3 a sum of Kshs.1000/- for service is reasonable. And similarly item No 4, item No 5 is found drawn to scale. Item No.6 a sum of Kshs.1,500/- is awarded.

Item No. 7 a sum of Kshs.4,000/- is found reasonable for service in Nairobi. Item No.8 a sum of Kshs.1000/- reasonable for service in Kisumu since both respondents Advocates are based in Kisumu. Item No.9 a sum of Kshs.1000/- is awarded and similarly for item No.10. Item No.11 a sum of Kshs.1,500/- is awarded. Item No.12 a sum of Kshs.1,000/- is awarded and similarly item 13. Item 14 a sum of Kshs.4000/- is awarded for service in Nairobi. Item 15 a sum of Kshs.1000/- is awarded, Item No.16 a sum of Kshs.4000/- is awarded. Item No. 17 a sum of Kshs.1,500/- is awarded and similarly item No.18. Item No.19 a sum of Kshs.1000/- is awarded and likewise item No.20.

On disbursements, Items Nos.22,23,24,25,27 are found drawn to scale but item No.26 a sum of Kshs.75/- is allowed while item No. 28 a total of Kshs.35,000/-is found reasonable to cater for travel expenses on at least five Court appearances. All these add up to a sum of Kshs.313,575/- which again attracts 16% VAT of Kshs.50,172/- thereby coming to a net sum of Kshs.363,747/- as assessed costs for both second and 3rd respondents.

Finally the sum of Kshs.100,000/- deposited by the petitioner herein shall be applied in the first instance towards settlement of the abovestated assessed costs.

**Dated and delivered at Migori this 28th day of August 2013.**

**D.K. KEMEI**

**SPM.**

**In the presence of**

......................................................... for Petitioner

..........................................................for 1st respondent

.................................................... for 2nd and 3rd Respondent

...................................................... Court Clerk

**..................................................................................**

**SENIOR PRINCIPAL MAGISTRATE**

__REPUBLIC OF KENYA__

**IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MIGORI**

__ELECTION PETITION NUMBER 1 OF 2013__

MICHAEL ODOYO NYAKWAKA................................................................PETITIONER

**VERSUS**

BOAZ OWITI OKOTH.........................................................................1ST RESPONDENT

RETURNING OFFICER NYATIKE CONSTITUENCY.........2ND RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.........................................................3RD RESPONDENT

__RULING:__

Counsels for the Respondents herein have presented their costs for assessment following the withrawal of the Petition and subsequent ruling thereon.

The 1st Respondents bill is dated 13/8/13 while that of the 2nd and 3rd Respondents is dated 14/8/13. I have considered the said party and party bills as well as the provivisions of the Advocates Remuneration order. I have also perused the Court record as from 29/4/13 to 14/8/13. Since there are two bill 1st Respondent. I note that there was no reply from the part of the pettioner and even though Counsels for the Respondents urged me to have the bills assessed as drawn, I shall not take that but proceed to assess each of the items. On item No.1 I am of the consiered view that a sum of 300 000/- would be reasonable in the circumstances bearing in mind that election petitions are weighty matters and that the Advocates remuneration order provides for a fee of Shs. 3 million in defending such type of cases.

Moreover matter dully proceeded to full hearing and submissions filed only awaiting Judgement before petitioner withdrew the sum of 15000/- to be reasonable them No.3 item No.4 is found drawn to scale. On item No.5 a sum of 10000/- is found reasonable to cater for travelling costs from Kisumu to Migori. Item No.6 a sum of 1500/- is awarded to cater for travelling costs from Kisumu to Migori. Item No.8 a sum of 1500/- is awarded to cater for attndfance item No.9 a sum of 10,000/- is found to be reasonable to cater for travelling costs. Item No. 10 a sum of 11,500/- is awarded for attendance. Items 11 for attendance to take direction a sum of 11,500/- is found reasonable to cater for both attendance and travel to Court on 30/5/13. Item 12 and 13 a total sum of 11500/- is found reasonable for attendance and travel and it was the date when case proceeded to hearing. On item 14 and 15 the sum of 10,000/- is warded for travel to Court on 25/6/13. Items 16 and 17 a total sum of 11500/- is awarded for attendance and travel, item 18 and 19 a sum of 11,500/- is found reasonable for attendance and travel. Item 20 and 21 a sum of 11500/- is awarded for attendance and travel. Items 22 and 23 a sum of 11500/- is awarded for attendance and travel. Items 24 and 25 are not awarded as the record does not show any attendances.

On disbursements I find all th items except item No.26(b) drawn to scale. I award 75 shillings on item 26(b), thus total disbursements on items 26 to 33 comes to a sum of 8055 shillings. Hence the gross total comes to a sum of 452555/- which agains atracts 16% VAT of 72408/80 thereby giving a net sum of Ksh.524,963/80 being the assessed costs for the 1st Respondent.

As regards the 2nd and 3rd respondents, I find they were represented jointly by one Counsel and bill presented was to cater for both respondents. On item 1 and 2 I find a sum of Kshs.250,000/- to be reasonable since Counsels participated in the trial although no witness was called for the 2nd and 3rd respondents. Item No. 3 a sum of Kshs.1000/- for service is reasonable. And similarly item No 4, item No 5 is found drawn to scale. Item No.6 a sum of Kshs.1,500/- is awarded.

Item No. 7 a sum of Kshs.4,000/- is found reasonable for service in Nairobi. Item No.8 a sum of Kshs.1000/- reasonable for service in Kisumu since both respondents Advocates are based in Kisumu. Item No.9 a sum of Kshs.1000/- is awarded and similarly for item No.10. Item No.11 a sum of Kshs.1,500/- is awarded. Item No.12 a sum of Kshs.1,000/- is awarded and similarly item 13. Item 14 a sum of Kshs.4000/- is awarded for service in Nairobi. Item 15 a sum of Kshs.1000/- is awarded, Item No.16 a sum of Kshs.4000/- is awarded. Item No. 17 a sum of Kshs.1,500/- is awarded and similarly item No.18. Item No.19 a sum of Kshs.1000/- is awarded and likewise item No.20.

On disbursements, Items Nos.22,23,24,25,27 are found drawn to scale but item No.26 a sum of Kshs.75/- is allowed while item No. 28 a total of Kshs.35,000/-is found reasonable to cater for travel expenses on at least five Court appearances. All these add up to a sum of Kshs.313,575/- which again attracts 16% VAT of Kshs.50,172/- thereby coming to a net sum of Kshs.363,747/- as assessed costs for both second and 3rd respondents.

Finally the sum of Kshs.100,000/- deposited by the petitioner herein shall be applied in the first instance towards settlement of the abovestated assessed costs.

**Dated and delivered at Migori this 28th day of August 2013.**

**D.K. KEMEI**

**SPM.**

**In the presence of**

......................................................... for Petitioner

..........................................................for 1st respondent

.................................................... for 2nd and 3rd Respondent

...................................................... Court Clerk

**..................................................................................**

**SENIOR PRINCIPAL MAGISTRATE**