NAIROBI, Kenya, Feb 16 – The Independent Electoral and Boundaries Commission (IEBC) has revealed a list of individuals who owe the electoral agency Sh403 millon in accrued legal fees.
According to the commission, efforts to recover the monies from individuals who lost election petitions have been futile.
Notable names that owe the commission money but are awaiting taxation from the court include Former Embu Senator Lenny Kivuti from wh the commission demands Sh4.5 million in a case filed in the High Court in 2017.
Dadaab MP Farah Maalim has been listed as owing the commission Sh3 million in a case filed in 2017 as he contested the victory of Hon Aden Duale in the Garissa Township Constituency.
Kitui Governor Julius Malombe is among those who owe the poll body with the tabled list showing he owes Sh2 million in a case he lost in 2017 while challenging the victory of Charity Ngilu as Kitui Governor.
Pending taxation, Migori Governor Ochillo Ayacko is required to pay IEBC Sh1.2 million after losing a petition when he disputed the victory of Former Governor Okoth Obado in the 2017 general elections.
Former Lamu Governor Issa Timamy is indebted for Sh1.5 million where he lost the petition after suing the IEBC and Fahim Twhaha challenging the latter’s election victory.
Former Education CAS Hassan Noor owes the poll body Sh5 million in a petition filed in 2017 polls when he challenged the victory of Former Mandera Governor Ali Roba.
In response to audit queries before the Public Accounts Committee for the 2020-2021 annual audit report, IEBC expressed that it has been frustrated in recouping the monies due to a myriad of challenges.
IEBC CEO Marjan Hussein told the John Mbadi led committee that they have moved to seek the legal opinion of the Attorney General Justin Muturi to surmount the challenges which include long filling of costs by the court.
Auditor General Nancy Gathungu has raised queries over Sh403 million outstanding legal award fee to the poll commission citing laxity from the latter in initiating the process of recovering the monies.
“Recovery of costs is dependent on successfully securing certificates from taxing officers in Court followed by appropriate execution of the proceedings,” Hussein said.
“Obtaining these documents requires time and funds and more often the judgement debtors are afforded an opportunity in court to be heard hence delaying the process,” he added.
In the assessed costs awarded to the poll body, the bulk of the amount was awarded in 2017 in the election petition filed at the High Court which was capped at Sh267 million.
In 2013,the election petition legal award fee at the High Court was Sh99.7 million with the lower court petitions in the same election year capped at Sh4.2 million.
In 2017 election petition, the poll agency is yet to recover legal award fee amounting to Sh32.3 million.
In some cases, the electoral agency has pointed out that law firms have been shown laxity in recovering the cost due to pending legal fees from the commission.
Several appeals have also hindered the recovery of the cost until the appeals are concluded.
“It is for this reason that we seek your legal opinion and advice on means and ways through which these outstanding costs can be realized by the commission from the Judgement actors,” the commission wrote to the Attorney General.
In some cases where the IEBC has won alongside other parties, the poll agency lamented that some courts have apportioned the entire legal award to other parties leaving out the commission.
Since 2013,the poll body has been able to retrieve Sh6.7 million in a list of 12 cases which they successfully won.
“Some advocates have confirmed receipt of the cost on behalf of the commission and are in the process of remitting to the commission.”
“A number of advocates indicated that they are in the tail end of taxing the costs while others are in the process of execution against debtors to recover the costs,” Hussein stated.
The report by the Auditor also shows that taxpayers monies worth over Sh2 billion might be lost over poor financial accounts reconciliation during the handover of the Electoral Commission of Kenya to the Independent Electoral and Boundaries Commission (IEBC).
Since 2009 when the handover was done to the Independent Interim Electoral Commission and subsequently IEBC, serious gaps have been cited which portends a huge risk for the loss of the public funds.
An Auditor General Report for the financial year 2020-2021 has unearthed that property and equipment balance worth Sh1.7 billion cannot be accounted for due to lack of ownership documents with some of the properties not valued in the financial statements.
The Public Account Committee while grilling IEBC CEO Marjan Hussein questioned why the commission is yet to obtain documentation for 85 parcels of land allocated by the national and county government majority of which were inherited from the ECK.
In response, Hussein told the committee led by Nominated MP John Mbadi during the handover from ECK to the electoral agency the documentation was not handed over and the process of retrieving the ownership from government agencies has been tedious.
So far the commission has been able to obtain 20 allotment letters and in the quest of obtaining other documentations they have faced obstacles as they share the titles with some government agencies.
“The Commission is collaborating with respective government agencies to obtain land allotment letters and partial development plans where the Commission has been allocated land. So far the commission has obtained 20 allotment letters,” stated Hussein.
The Auditor General Nancy Gathungu pointed out that the cost of 56 parcels of land which the office blocks of the commission have been constructed have been excluded from the commission’s financial statement.
Hussein told the watchdog committee that the electoral body requires an additional budget to undertake the valuation of property inherited from the defunct commission.
“Additional budget will be sought from the National Treasury to complete the registration process and to comprehensively undertake the valuation of all land and buildings,” said the IEBC CEO.
The legislators however advised the poll agency to seek the services of the district and county valuers in the land valuation instead of awaiting cash approval from the exchequer.
“Instead of seeking additional funds from the National Treasury you can engage the services of the valuers from the country government as well as the district valuers as they are already being paid by the taxpayer,”said Funyula MP Wilberforce Oundo.
The Auditor General Nancy Gathungu also questioned the financial position of recovering monies which were issued in form of imprests and salary advances to staff and car loans to the ECK commissioners amounting to Sh37.3 million.
Apparently, the National Treasury has already obtained the funds but has not issued accounting records to write off the accounts from the Commission’s financial books which prompted the Auditor General to raise the queries.
Hussein has however stated that efforts have been made to institute recovery measures from the National Treasury which are yet to bear fruits.
“I have not seen anywhere that the money has been recovered and we have gone through the documentation to see if there’s anywhere that it has been indicated it has been recovered,”
“We cannot trace where this ECK staff are and that’s why we wrote to the National Treasury,” the CEO stated.
The committee however questioned why it has taken long for the poll body to obtain the monies from the National Treasury or write it off from their accounts.
“Why is it taking too long for the treasury to address this simple matter? Either they pay you or they advise on how to handle the book of accounts,” stated Mbadi.
“IEBC must look for settlement either by commission or treasury. If not those who are liable should be found and made to pay,”he added.
Funyula MP Wilberforce Oundo commented that there has been laxity from the poll agency to identify the staff of the defunct commission who have failed to remit funds to pay their loans.
“Government records are never destroyed they are always alive.The members of staff who left the ECK are Kenyans who have been registered with IDs and therefore they are tracable unless they have gone to meet their maker in heaven,”
“Is it a case that they are not traceable or no effort has been made or you find the amount is not material to afford your effort to trace the amount,” said Oundo.
PAC committee gave the electoral body one month to institute recovery measures or acquire approval of the money recovery from the National Treasury.
